2020. i'm jon scott thanks for watching, be back here tomorrow night. see you then. ♪ ♪ mark: hello america i'm mark levin mark liberty levin and ken star was not just an independent counsel you know. he was a former federal judge appellate judge big time judge. among other things, he is a expert on the constitution. i think the constitution still matters at least in some quarters in this country. ken star, how are you sir? >> i'm doing great mark, thank you. mark: i want to read you a provision of the constitution

judge star and then i want you to explain it to the american people. because there are news organizations that are making declarations about who is won the presidency and so forth so i want to unravel this slowly but surely. because we live in a constitutional system. not a pr system, not a left we think system, but a constitutional system. article 2 section one clause 2 of the constitution provides as follows i quote in pertinent part each state should appoint in such manner as legislature therefore may direct a number of electors equal to whole number of senators and representatives to which the state may be entitled in congress. in other words, the state legislature determine how to select their electors. isn't that what that means? >> that's exactly what it means, mark. and it got lost in the pennsylvania shuffle. the founding generations sitting in philadelphia undoubtedly thought well, should we have the

states supreme court make the determination no we want this is a democrat with a small d approach. we want the legislatures, those closest to the people welcome the state legislatures, they're the bosses. not the governor. and what happened in pennsylvania over these recent weeks is a constitutional travesty. governor wolf tries to get his reforms, his vision, as he was entitled to do through the legislature over pennsylvania he failed. he then goes to the states supreme court. which by a divided vote accepted the substance of what governor wolf was doing and then added thereon, nooks and crannies as well. happily, in recent days we've seen justice samuel alito step in as a single justice has the

power to do it and essentially in a very short order say the legislature is the boss. what the governor did, this is my interpretation is utterly unconstitutional. what the pennsylvania supreme court is -- did is utterly unconstitution clear as words that you you just read. mark: ken starr we keep hearing what votes do we count in other words this notion of count every vote some votes are legal some aren't. some are constitutional some arnght. in that order you speak to justice alito said segregate votes that occurred after 8 p.m. eastern time on election day, tuesday. because those votes may be in question under our federal constitution based on what the state supreme court, that is the state supreme court may have

disenfranchised those voters by violateing federal constitution isn't that the potential point he's making here? >> exactly right. in fact, to count every vote maybe a crime. it may even be a crime under federal law. it's definitely a crime under state law if that is not here's the keyword illegal, and that's why you see and it's shameful that vice president biden's people and the vice president himself are saying, count every vote. and selling a lot of t-shirts. that is a potential and invitation for absolute lawlessness. i know this situation very quickly were recently widowed woman knew how her late husband would vote. he was deceased. that's a human tragedy. what's a travesty is, she cast his vote for him.

we called that absentee ballots no we call that an illegal ballot. mark: they say count every legal vote except, of course, they have and there's widespread reporting on this push the republicans out. while they're counting a legal vote in the state of philadelphia. i'm told by the speakers office there they have over 100,000 provisional ballots you don't hand out like lollipops there are conditions for those i'm gravely concerned judge starr what's happening here is all of the checks and safeguards thafn built into the electoral process by the constitution, by state constitutions by state legislatures, are being litigated away. you know? donald trump is selected president in 2016. we knew he had won. he wasn't actually selected at 2 a.m. or 3 a.m. next morning but we knew he won because it was overwhelming they are still counting votes now and still

counting votes because chaos seem to be the objective more chaos you can create more uncertainty you can create democrats judge starr want to vote earlier and earlier and count later and later what's the point in that? >> both ways. well it doesn't bode well for confidence in the election process. everyone uses the word integrity. i think on the republican side we're using it with every breath that we take. can't we have honesty and transparency and openness and so forth? and i must say i've been disappointed in some of the reporting that is gone about the process. willfully blinding themselves some of the reporters, to the reality of what's happening before them. so, yes. what's happening, i think, in a limited number of cities, but they're all large cities and certainly two of those large cities have a history, detroit,

and philadelphia, a history of sorted history of voter fraud and convictions. we're not talking about allegations and political rhetoric. we're talking about the judicial process having resulted in criminal convictions including in times past the sitting state senate majority leader who hailed from philadelphia, within the to jail because of voter fraud. so failing to -- insist on checks and balances, sunshine, please let the sunshine in and that's in the form of these observers who have meaningful access. it's not access right mark, if you're in the convention center, and you really can't see 60 yards away what's going on. that's form over substance. mark: u.s. supreme court so this matter presents itself into the united states supreme court in my mind three things can happen one they don't take it up in

full even think i strongly feel they should hopefully four justices as i understand it. that are required -- number two, sam alito hopefully majority will say okay, those segregated votes they were segregated out. those are unconstitutional. don't blame us. don't blame the legislature. you can blame the governor and you can blame your state court. four, number three nobody is thinking about i don't particularly like it court could say look those segregated votes from our perspective is unconstitutional, but we're going to leave it to the united states congress to determine whether they're unconstitutional or not and the state -- legislature is free to send its own list of elector based on original statutory laws we know how much because they're segregated votes and existing law before it was changed by

supreme court. in other words there could be two sets of electors with one set certified by governor one certified by legislature by the federal constitution and congress can sort it out what do you think of those three possibilities? >> right heaven forbid two of them -- on the one that i think is the more or most likely is that the supreme court will now do its duty. in the pennsylvania case because it was very clear from the outset that what the governor did and what the state supreme court did was utterly unconstitutional. so it is a lawless act. and at this stage, the supreme court has a duty in light of the nature of the issue, and the stakes at hand has to take the case. i think, by the way, the earlier determination by justice alito to call a halt if that had begun to those i view as illegal

they're just illegal. they don't and should not count. his determination to do that is a signal not assurance that a majority of the supreme court would uphold what justice alito has done we'll see that's a guess but reasonably educated guess. mark: i hope you're right i'm concerned about chief justice who made some distinction between a federal state court and does the constitution as we read it -- aloud as i read it aloud is there any language between state and federal courts? >> absolutely not. so i must say, i did not admire that distinction that chief justice roberts was very able made, and by the way he voted in the wisconsin case where a federal judge did what governor wolf was doing in pennsylvania. when a federal judge in wisconsin engaged in those

shenanigans perhaps for a noble reason let everyone vote and so forth. that federal judge was acting lawlessly happily court of appeals in chicago put a halt to that. and then the supreme court of the united states without any decent without any decent so consider that at the time 8-0 said the 7th circuit was right federal judge was wrong. interfere in that state election. okay so that's all good. that's the distinction the chief justice roberts drew with respect to pennsylvania. but the underlying principle is not what a federalism as you rightly point out. the real point is, legislature, legislature, legislature. let us all return to the constitution, read it, it could not be more clear that it is the legislature that's boss and not governor wolf. mark: when we return judge starr i want to ask you a question how do we select presidents in this country by the declaration of media organizations and

decisions groups? or by our constitutional process, the electoral college, and the statutory process that meets voting in congress and so forth, and when there's ongoing litigation serious litigation over variety of states litigation that's going to come before congress meets, is that to be dismissed when we consider whether or not a declaration of this candidate or that candidate is president of the united states? we'll be right back. e portugues? i thought we were hungarian. can you tell me that story again? behind every question is a story waiting to be discovered. this holiday, start the journey with a dna kit from ancestry.

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contradiction rei and self-serving for the democrat party to be pushing the national popular vote on the one hand? but undermining state legislatures and going to judges to get their way on another hand? >> there's a contradiction and unifying theme is we don't like the structure they were burning their bibles this kind of cultural trend continues may be weal see public burnings of the constitution. the constitution is incredibly sensitive to the very idea that we're the united states of america. we're not just america. we are the united states of america. and we fought a civil war, and have inherited great, great rit rick of abraham lincoln about this june of states. so thereby to be in secessions

that means states count. the beauty of the states even in the age of interconnectivety is that not all answers are in washington, d.c. the laboratory of the states, all this fits together that's why the electorate ordain at founding in philadelphia the founding generation was very sensitive to the idea and ideals of a federal republic. bound together by one constitution as the supreme law of the land as constitution of states. the electoral college reflects the beauty of federalism. now we either like the idea of the united states of america or we will prefer then, we just want california, new york and illinois, and couple of other states to decide who the next president may be. so if you live in, quote, flyover country, we don't care about you. you're out. and i think that's a very

destabilizing, disruptive kind of attitude toward we the people. it's not we the people of america. it's we the people of the united states of america. so i think north dakota should continue to count. mark: yeah and continue to produce the fuel that we need in the rest of the country. all right i want to make a point on your point. i see a war on the constitution by the left and democrat party whether they're litigating we've talked about pennsylvania, and pennsylvania is not the only state. activities took place in georgia, wisconsin, in michigan, and other states. but 300 lawsuits were brought in the course of the last year 300 lawsuits to affect the voting system which is why you see such a difference between 2016 and 2020. but that said i see a war on constitution by the left and democrat party before this election, they were talking about stacking the supreme court and packing the supreme court before this election, they were talking about adding four

democrats forever more in the united states senate they were talking about eliminating the filibuster rule which isn't in the constitution but certainly is compatible with notion of the great deliberative body and talked about war on electoral college and not talking about that anymore right now but they did go into the courtrooms or go to their legislatures and try to change the methodology by which votes are counted by which votes are cast. the democrat party didn't do this because they believe in good government. they didn't do this because they believe in fairness between the parties. they did this because they're trying to stack the system. particularly in the met poll ton areas so i want to ask you a question. when we have news organizations announcing we declare the joe biden president of the united states we declare whatever they declare. does that have any constitutional legal or substantive meeting other than pr aspect at all? is that how we choose our

presidents? >> thank goodness, no. just as polls got it badly wrong, have they gone out of business, by the way? these poll or fired everyone and said we're going to start all over again? the answer is, no. this should not be going on because it is all about power. achieving power. and that is quite dangerous. if you're not seeking to vindicate rule of law in democracy the constitution should be held up as sacred here a hugo black great liberal justice of the war court era always holding up the constitution pointing to it. showing that dog years in instead there's a sense that we want just results and we don't care what it takes. we don't care what the constitution says. but to answer the fundamental point, the news organizations

have zero power they can try to influence. but it will be up to the electoral college, which will meet, and it will determine they will cast its votes, each state with its electorates chose about in the way once again that the legislatures determine. so that's going to happen in december. approximately december 12th so we have over a month to go before the decisive votes are cast. then the electors report to congress. and to the house of representatives, and they will then say, here are our votes. so there are several steps that are yet to be taken, and never forget the role of the legislature. if the legislature of a state let's just say pennsylvania believes that the election cannot be trusted, it can step in and determine how the electorates are chosen from commonwealth. mark: that's right i said that the other day and hell was

rained upon my head by liberal, liberal law professors who on the one hand pretend to teach constitution but on the other hand despise constitution so power is supposed knob state legislature ultimately with congress. because then congress counts the votes and objections can be raised i won't get into all of the weetdz and processes so forth but decision desks and news organizations as you point out and i want to underscore do not choose the president of the united states. they can give their opinion all they want. they can issue declarations all they want. but we follow the constitution. judge starr i want to thank you very much for your sober thinking and your edification for me and rest of the country. god bless you sir. >> god bless you, thank you, mark. mark: we'll be right back.

mark: live from america news headquarters i'm jon scott thousands showing they support for trump and demandingings to, quote, stop the steel. the demonstrators are upset over alleged voter fraud a claim that is not backed up by any substantial evidence yet. the commander in chief took notice of the march driving through the protest inside his motorcade and waving to his supporters. the federal judge saying chad wolf was not legally acting as secretary of homeland security meaning recent restrictions on

daca are unvalid daca and obama era program that shields undocumented immigrants who came here as children from deportation is currently protecting about 800,000 people president trump has long been critical of the program. i'm jon scott now back to "life, liberty & levin." ♪ mark: welcome back america, our next guest is a constitutional and election law expert as well hans vons how are you? legal fellow of the heritage foundation before that he was a commissioner for the federal election commission. he was counseled to assistant attorney general for civil rights national department of justice in charge of enforcing voting rights laws. who better to have?

hons hundreds of lawsuits were brought prior to this election, the vast majority of which were by the democrat party or democrat party surrogates. >> right. mark: hundreds of them number one have you ever seen anything like this before? and number two, what was the purpose of these lawsuits? >> no it was unprecedented i've never seen so many lawsuits filed before election day, and all of the lawsuits had a common theme. they all tried to get the security protocols that are in place for absentee or mail-in ballots eliminated they wanted to get rid of for example witness signature requirements on absentee ballots. they wanted to get rid of signature comparison for absentee ballot which is election officials compare signature on the ballot with signature on file for the voter. they tried to implement vote harvesting in every state so states that banned vote harvesting in other words, strangers and being able to come to your front door to pick up ballots they wanted that overwritten. in alabama, which has a vote or

id law that applies to absentee ballots they try to get the courts to basically say they couldn't apply that id law to absentee ballots either so all, everything they did -- was intended to get rid of any of the protections and measures put in place by states to try to prevent fraud and the use of absentee ballots. mark: they succeeded in many respects. in states like pennsylvania, and other states didn't they? >> right. they sure did. the order by the pennsylvania court was really bizarre in many aspects. you know, telling the election officials there that they couldn't reject a ballot if the signature didn't match. they couldn't reject a ballot even if there's no postmark on the envelope to indicate it has been voted by election day, and then extending deadline past the deadline set by the state legislature. mark: let's again take pennsylvania as a example although not only example if

you're not required to have a postmark or signature or a signature that matches another signature, in fact, you could have voted after election day, couldn't you? >> you sure could and it would be very easy if you can pick up absentee ballots that have not been voted by voters happening all of the time to submit fraudulent ballots. mark: what do they check it against? under those circumstances, interesting in person voting has be better at your precinct in line or you don't get your vote all of these were trump voters oarngd sitting at home maybe you're waving election results, you don't like what's happening in pennsylvania, the early vote. you can vote your mail-in vote you don't have to have a postal date on there, in fact, you don't want one you don't have to sign it you drop it off, and vote counts. cent? >> yeah that's exactly right and that is very problematic there's

no reason to extend the deadline for absentee ballots past election day. it is not as if absentee ballots you can only get them a couple of days before election day. in fact, the vast majority of them can be requested and obtained weeks if not more than a month two months before election day. so you have plenty of time to get it back in the hands of election officials by the end of election day. mark: you know i brought this up to judge starr and i brought it up on radio show and written about it now democrats they want, they want earlier and earlier vote and later and later count. earlier vote and later count, why? >> well, earlier the earlier you vote the frankly less information you have about candidates, i mean, look some states were starting early voting before the first presidential debate even occurred what that meant was that if individuals changed their mind because of information they got after they

had already voted guess what it is too late. it's too late to change your ballot and by counting ballots late, it gives unfortunately the opportunity particularly for absentee ballots to try to gather up ballots that had not been voted after election day. which is another reason they wanted vote harvesting everywhere. vote harvesters can go through neighborhood, collect absentee ballots that haven't been voted and then use that to try to change the results of the election which they already know how it is going from the preliminary count. mark: another reason to have votes earlier and earlier to really incentivize people not to vote in person with more and more structures in place, we have election judge, we have both parties. your name is matched against a registration and many states your voter id. you vote early, you vote mail-in, you don't need a signature. you don't need a postal date. whatever state does whatever the boards of elections do and

violation of the federal constitution when the state legislature trying to set in safeguards, then you have anarchy in many of the situations you have chaos don't you? >> yeah and look one of the most important ingredients of a fair and secure election is transparency that's why every state authorizes poll watchers from the candidates the political parties to not only be in polling stations but supposedly where they're counting ballots well you can't have that when people are voting through the mail. they're voted outside the supervision of election officials outside of the observation of poll watcherses and look nobody disputes that you need absentee ballots for people who are too sick or too disabled to make it polls or going to be out of town election day like our overseas military folks. but for the vast majority of us we should vote in person and you shouldn't volt by absentee ballot. that's just not the smart thing to do. mark: there's ongoing litigation

taking place much was very, very serious evidence gathered al gore had 32 day and two u.s. supreme court decisions. shouldn't these news organizations and others give this time to play out a little bit? the way they did in 2000? that's my question to you, your answer when we return. history

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mark: welcome back hans vons exfederal commissioner and former prosecutor in the civil rights division of the department of justice and enforcing all things voting rights laws. now that's an important concept enforcing voting rights laws. >> right. mark: so my question to you is this there's litigation going on and some states they're going to recanvas also the president's campaign depending on the state

like in wisconsin and so forth so razor thin they have right for recount what does recanvas mean? >> recanvas is when they quickly go through all of the vote totals, and ballots that were sent in by election officials from polling places across the state and make sure that all of the numbers were correctly totaled up. mark: they want to check their computers and software they have some issues like this in michigan there's some questions being raised in wisconsin and so forth. so really gives an opportunity to the state election board if they're earnest to say did we get this right that's still going on today isn't it? >> yeah. it is. mark: number two, there are state laws that give a candidate depending how close the election is some states under 1% and so forth. the opportunity to an automatic request a recount, correct? >> in many states you can get recount depend on state a 1%

margin of difference in some places it is half a percent margin of difference. mark: that takes a little bit of time that can't be done in 24 hours recount can take a couple of weerks week or so correct? >> that's exactly right think how long they're taking right now just to count the ballots and when you do recount you have to recount every single ballot in the state. mark: why is this important? why is this important as a fundamental matter as a constitutional matter, and actually for congress when they meet and determine whether or not the electoral college votes are the electoral college votes that they want to certify? >> well because look election officials even when they're doing their best may make mistakes all you have to do is look at the glitch that was just announced in michigan where they initially announced that democrat had won a race there and then realized the software glitch had misreported things and, in fact, the republican incumbent had won.

recanvass often do turn up mistakes that were made and totallying up the votes and when you do a recount vote totals often also change. because remember, mark, most of these places are using opti scan paper ballots and sometimes those are not been marked the way you're supposed to be read by a computer scanner and when you go through and count them sometimes you have to look at them by hand. to figure out how the vote, how vote or actually cast their ballots so recounts also can change results. mark: let's look at the state of play as we speak, we have a significant lawsuit that's been brought in pennsylvania that the supreme court has indicated as a very likely to consider. that can have an enormous on that state. we have canvassing recanvas taking place in some states that are very, very close we have the right for a candidate say the

president's campaign the president to call for recount in several of the states that are very, very close. you have al gore who litigated for 37 states in one state really three counties but one state went to the supreme court twice. and yet it seems like joe biden, democratic party everybody else is in a very big to get an answer today isn't it better to go through the process? the constitutional statutory process to make sure everything is right in every state? >> yeah particularly because resultses aren't efficient until election officials and state officials certify the result and they won't do that until the canvassing recanvas has been done and reorder won't be down until recount has been completed, and if there's litigation, serious litigation contesting the outcome that they also are foolish and i don't think they will, certify the results, if, in fact, that

litigation could change the outcome. mark: reason why it is fool picture because final check is the united states congress some state jumps gun and significant litigation or recounts county completed so forth congress can reject electors and that particular state. we'll be right back. i'm erin. -and i'm margo. we've always done things our own way. charted our own paths. i wasn't going to just back down from moderate to severe rheumatoid arthritis. psoriatic arthritis wasn't going to change who i am. when i learned that my joint pain could mean permanent joint damage, i asked about enbrel. enbrel helps relieve joint pain, and helps stop permanent joint damage. plus enbrel helps skin get clearer in psoriatic arthritis. ask your doctor about enbrel, so you can get back to your true self. -play ball! enbrel may lower your ability to fight infections.

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mark: welcome back. hans vons here's my concern if this is not done right and not about counting every vote it's about upholding the constitution upholding state laws decision by state legislatures and so forth. if this isn't done right, this time, even though it impacts this presidential election, we're going to have a disaster every four years. and it's going to get worse and worse with litigation, with courts interfering with state legislatures with violations of deadlines, with other parties not being able to be present when there's counts taking place. this stuff needs to be resolved now does it not? >> yeah. it does look i would compare this to give you a simple comparison. look,en not everyone would agree in the middle of the super bowl one of the coffees from one of

the teams should not go to referee say listen we need to change rules applying to current game that's exactly what has happened this year in the election process. we had lawsuits filed all over the country, and we had judges both state court judges and federal judges trying to change the rules not just before the election, but in the middle of the election when the voting had already started early and through absentee ballots across the country, and relaxing quite frankly the needed rules to maintain the security, for example of absentee ballots that is not a way to do election. >> number two u.s. supreme court so far has failed to uphold the federal constitution and in doing so, put an end to some of these activities that are going on that benefit one party against another. it's really appalling until the supreme court steps in and puts its foot down and upholding

article two section one upholds it without any ambiguity this will raise questions about elections. but here's the other problem or the second problem hons that is this if you can't trust numbers that are coming out in one state or another and one city or another, then the legitimacy of the presidency is on the line each and every time. is it not? >> yeah. no that's exactly right. mark: yeah so we're all being told now to unite. to unite. i'm very troubled by this strategy that was put in place here it is, obviously, a long-term strategy by the democrat party, and i'm also very troubled by the fact there was almost no reporting on it. up until a few weeks ago or maybe -- maybe even a few days ago and even now there's almost no reporting on it effect this had on outcome of the election no? >> look you're exactly right, and just keep in mind mark, that

all of the measures that were asked for in those lawsuits to basically get rid of the safety protocols for absentee ballots, you know all of them were an hr1 that was the first bill that nancy pelosi introduced in the house two years ago when they took over the house. that bill would have put all of these terrible measures in place forced them on stage across the country. so this is not just a short-term strategy. this is a long-term strategy they want to change federal law to micromanage and take over the running of elections by the state and do it in a very bad way. mark: and the amazing thing is, in this provision of the constitution, we keep talking about there's only one body mentioned as the body that has the say. that beginning says and final say and it is the state legislature, and they're being pushed aside for the state courts. they're being pushed aside by the boards of elections. they're being pushed aside by the governors, and then when you

dare to raise it say wait a minute full stop the state legislature gets to decide how the electors are chosen you're accused of trying to press, suppress, racism, disenfranchise ment all of the usual that we get from the left. now on another topic that's really important we see individuals saying we need to keep a list of people that have been associated with this administration almost an enemies list you've seen it by aoc, you've seen it by jennifer ruben what do you make of this? >> well, in fact, jennifer ruben put out a tweet saying not only there should be a blacklist of everyone who is associated with the campaign, she also wants to blacklist of anyone who talks what about we've talked about today had is if you talk election fraud, you should be on that blacklist and she calls for anyone like that to be exiled from society and to not be given a job in academic, academia and

private industry. it's i'm just wondering have they picked the location yet for detention camp or i'm going to be sent talking about this kind of thing. >> she, of course, is a columnist to my opinion for "the washington post" i'm sure she'll be forever why don't they pick sites where fdr of japs desent i suppose they could sending us there. i know they loved fdr. hans von thank you be well. >> we'll be right back.

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to learn more, visit paycom.com it's all about the bedroom. and with caspers black friday sale, you can save up to 30% and make yours a winter slumberland. the fluffiest down duvet you'll ever feel, soft and light percale sheets, a cool, supportive mattress and plush pillows, even our glow light for better sleep. so go ahead, give the gift of a better bedroom and shop the black friday sale with up to 30% off at casper.com there are two documents i turn to other than the bible. the declaration of independence

and the constitution of the united states. we have been talking about the constitution and rule of law. i'm in this chair and i do this program for one reason and one reason only, because i believe in this country. i believe in liberty and i believe in the declaration and constitution 69 united states. that's what i fight for here and that's what my guests mostly talk about. it applies today as it did yesterday and it will tomorrow. if the constitution is applied, if the constitution is honored including by the supreme court, then the outcome will be righteous regardless of what the outcome is. i think the way this president has been treated by the media, academia and hollywood, not one moment of piece. it's been disgusting and appalling.

but this is what matters. the declaration and the constitution. or we'll lose our republic. we can't have democrats and their surrogates running around in different states and changing the voting rules. this needs to be resolved. this needs to be fixed going forward or for every future election it will be a mess. keep your beliefs in god, family, the declaration, the constitution, and the country. fight on. be heard. embrace your principles. but have faith that in the end the system will work. if it's not working, it's up to you and me to make it work. remember also the declaration and the constitution are not self-executed. it's up to us. we have had a lot of major battles in this country over the years, the decades and

centuries. this is one more of those battles. we'll get through it and be stronger for it as long as we hold the declaration and the constitution firmly. see you next time on "life, liberty & levin." [♪] jesse: welcome to "watters' world," i'm jesse watters. it doesn't add up. according to hillary clinton what happened? imposed to believe joe biden is going to be president of the united states? joe biden? there is something that doesn't feel right about this. you feel it, too. he didn't earn it. i didn't really campaign. he thought he was going to lose. he ran a losing campaign. so 10 days after the election, how is he ahead. let's try to put this together.