AMY GOODMAN: This is Democracy Now!, democracynow.org, “War, Peace and the Presidency.” I’m Amy Goodman.

We end today’s show with The Nation's justice correspondent Elie Mystal, whose new piece, out this week, is headlined “That ’Little Secret' Between Trump and Johnson? Here’s What It Could Mean.” It refers to a comment Trump made at his racist Madison Square Garden rally in New York last Sunday about how House Speaker Mike Johnson could help install Trump as a president through a “contingent election,” in which the House, not the Electoral College, determines the president.

DONALD TRUMP: You know, with me, we’ve got to get the congressmen elected, and we’ve got to get the senators elected, because we can take the Senate pretty easily. And I think with our little secret, we’re going to do really well with the House, right? Our little secret is having a big impact. He and I have a secret. We’ll tell you what it is when the race is over.

AMY GOODMAN: “He and I have a secret. We’ll tell you what it is when the race is over.” And clearly, President Trump is concerned. Pieces in The Washington Post, Politico, Politico headlined “Trump lagging in early vote with seniors in Pennsylvania, a red flag for GOP.”

For more, we go to Elie Mystal. He is author of Allow Me to Retort: A Black Guy’s Guide to the Constitution.

Elie, welcome back to Democracy Now! OK, what is this “little secret”?

ELIE MYSTAL: Yeah, so, it’s really the 12th Amendment. One of the reasons you have to ask yourself: Why is Donald Trump and this group of MAGA people stomping around the country calling Puerto Ricans garbage and generally acting like they don’t need to get any more votes to win the presidency? And the reason why they think that they don’t need any more votes is — comes from the 12th Amendment. The 12th Amendment is where you get to these contingent election scenarios. What the 12th Amendment says is that the winner of the presidency is determined by whoever has a majority of the electoral votes among the electors appointed, right? And that’s the key phrase. If you do not get to a majority among the electors appointed, then you kick it to the House, and that’s where you have the contingent election, where, importantly, the House votes based on its own state delegation. So, basically, every state gets one vote. Currently, there are 26 delegations that are Republican, 24 Democrat, so Trump would win in that contingent election of the House.

But that’s not the secret. The secret is that if you decrease the number of electors appointed — right? — the math is simple that the majority of electoral votes that you need also goes down. So, in a very simple case where we think it is — you need 270 electoral votes to win, if there are 538 total electors. But if you take that number down to, say, 528 electors, well, then, all of a sudden, you only need 264 electoral votes to win, right? And you can do that, you can decrease the number of electors appointed, if you prevent, delay, obfuscate the ability of any particular state to certify its elections and send electors to Congress by the statutorily required deadline of December 11th.

And so, Amy, I think that’s where this whole game is going to be played by Trump and Johnson. They’re going to try to prevent states from submitting — states that Harris wins from submitting valid slates of electors by the December 11th deadline. And then, once we get to that deadline, Mike Johnson, as speaker of the House, and Republicans in control of the House, will simply call the process over and say any electors not appointed by the statutory deadline of December 11th simply don’t count. And that is a way for Trump to steal an election that he loses.

AMY GOODMAN: And for people who are watching this globally, Elie, for people who don’t understand the Electoral College — and there are movements to change it, like the National Popular Vote Interstate Compact, designed to ensure that the candidate who received the most votes nationwide is elected president, would come into effect only when it could guarantee that outcome. What this system is that we have, that they’re finagling with right now?

ELIE MYSTAL: Yeah. So, for people who are not from America, who are, like, trying to figure out what’s going on, I believe the scientific term for the Electoral College is “stupid.” Right? The Electoral College is anti-democratic and dumb. If you’re living in some other country and you have been told that America is the greatest democracy on Earth, you have been sold a lie. We are not the greatest democracy on Earth. We are not even a true democracy, because of the Electoral College, right? The Electoral College, which has always been a part of our history of our nation, it’s always been part of the structure of the government, is fundamentally an anti-democratic system for the single elected official, the single representative that is supposed to be elected by all the people in the United States, right? Everybody else, it’s based on their county, their town, their state. The president of the United States is the one official that’s supposed to be elected by everybody, but he’s actually elected by — he or she, one day hopefully soon, is elected by nobody, because of the Electoral College. It is a ridiculous system.

It’s an anachronistic system, basically, like so much else in the Constitution, made to — it’s another one of those poison pills the enslavers put into the original Constitution in hope that it would make it very difficult for slavery to ever be outlawed in this nation. And while we overcame slavery, its fundamental structure of allowing for minoritarian white rule is still in place, and we still see the effects. And that’s what we’re looking at in this election.

You got to remember, Donald Trump is most likely — you know, regardless of what happens on Tuesday in the Electoral College, Donald Trump is almost certainly going to lose the popular vote for the third time. For the third time in a row, this man will have a minority of the popular vote, yet still could be president, either by winning the Electoral College outright or by gaming the system as I’ve outlined in my piece in The Nation.

AMY GOODMAN: Tell us more about what you wrote about deadlines, that what this means is that Republicans just have to delay long enough to pass those deadlines. They don’t have to win; they just have to stall. And we’re seeing more and more across this country these complicated local election laws that have to do with counting. You know, we’re doing an election special at night, an election special the next morning, when we very possibly might not know what the election results are, even the next morning.

ELIE MYSTAL: Yeah, delay, delay, delay is the name of the game for the Republicans. Statutorily speaking, electors have to be submitted to Congress by December 11th. Statutorily speaking, those electors have to vote and then submit their votes on who the president should be by December 25th, Christmas Day, because we are that kind of stupid, right? January 3rd is when the new House takes office. That’s a constitutional deadline, so no shenanigans are applicable there. And January 6th, as the violent MAGA people know, is the date when the House certifies the results of the Electoral College vote. But that day is largely ceremonial. Even Mike Pence understands that date is largely ceremonial. The real action is on December — is between December 11th, when the electors are appointed, and December 25th, when they’re supposed to be done voting.

Now, those deadlines are statutory. That means they can be changed. And if you roll the tape back to 2020, when Nancy Pelosi is the speaker of the House and the Democrats control the House, one would imagine that if states had gotten cute with their delaying submitting their slates of electors, Nancy Pelosi would have just extended the deadline. But this is why Speaker of the House Mike Johnson is critical to Trump’s secret plan to steal the election, because if Mike Johnson is in charge, which he absolutely will be — even if Democrats win the House, Mike Johnson is in charge on December 11th. If he’s in charge then, he could not move the deadline, essentially, and declare the process over.

Now, let’s say Democrats win the House, right? Let’s say January 3rd, Democrats come in, Hakeem Jeffries is the new speaker of the House. Could the Democrats undo what Mike Johnson has done on December 11th and December 25th? Maybe. But as my colleague John Nichols just reminded us all, Democrats probably ain’t going to control the Senate on January 3rd. So, you generally need a bicameral proposition to move deadlines like that. You’re probably not going to have the Senate, even if the Democrats win the House.

But more importantly — and, you know, people who know my beat will not be surprised about what I’m about to say — but if you set the deadline on December 25th, and on December 25th you say, “OK, Trump is the president now, because we didn’t count the electors from Wisconsin and we didn’t count the electors from Pennsylvania” — let’s say that happens, right? Well, now Hakeem Jeffries comes in, we change the rules, whatever. That’s called a lawsuit, right? And that ends up in front of the Republican-controlled Supreme Court, which we have already seen go to great lengths to protect Donald Trump, to protect his candidacy and to protect his ability to become president again. So, even if Jeffries and the Democrats win the House and take over on January 3rd, by then you’re putting it all into — like, all roads lead to the Supreme Court. And the Republicans, MAGA Republicans, and their wives, control the Supreme Court. So, as I say in my piece, I mean, everybody likes to say, like, “We’re close to a constitutional crisis.” Nah, we in a constitutional crisis now, bro. And what happens after that, it’s anyone’s guess.

AMY GOODMAN: Elie, you have an interesting piece in The Nation, “Black Men Will Vote for Harris—White Men Are the Problem.” I mean, I think a lot of the emphasis came when President Barack Obama started to appeal to Black men. You say, “Why is the media talking so much about the fraction of Black men who might go MAGA when more than 60 percent of white men will vote for Trump?”

ELIE MYSTAL: Yeah, I think the focus on Black men has been a complete media red herring. Right? People have been worried about it. I saw a poll recently or post recently saying, like, “It looks like Trump’s support with Black men could be evaporating.” Evaporating? It was never there. All right? Trump is going to get the same Black men to vote for him who voted for him last time, who voted for him in 2016, who voted for Mitt Romney in 2012, who voted for John McCain in 2008. He’s going to get 10 to 15% of the Black male vote, because there are 10 to 15% of Black males are Republicans, and they like Republican things, like shooting Liz Cheney apparently. That’s a Republican thing that apparently a lot of Black men — that 15% of Black men like. But that’s it. And that’s always it. And it’s never more than that, right?

Conversely, we live in a country — 

AMY GOODMAN: We have five seconds.

ELIE MYSTAL: Conversely, we live in a country where somewhere around 60% of white men will vote for the adjudicated rapist Donald Trump. And that is our problem in this country, not the 10 to 12 to 15% of Black men who are going to vote Republican.

AMY GOODMAN: Elie Mystal, we want to thank you for being with us, The Nation's justice correspondent. We'll link to all your pieces, including “That 'Little Secret' Between Trump and Johnson? Here’s What It Could Mean.” I’m Amy Goodman. Thanks so much for joining us.