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Smerconish

Are Democrats Doomed in the Midterms? Palin v. Times Goes to Jury; Musk to Teen: Stop!; Politics in the Water; NCAA Won't Adopt USA Swimming Guidelines For Trans Athletes. Aired 9-10a ET

Aired February 12, 2022 - 09:00   ET

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

[09:00:22]

MICHAEL SMERCONISH, CNN ANCHOR: What if supposed voter suppression doesn't actually suppress any votes?

I'm Michael Smerconish in Philadelphia.

Here's why I'm asking that question. You know the conventional wisdom. That Democrats are doomed in the midterms because historically, the party outside the White House makes gains in the off-year election. Come November, Republicans need only gain five seats to take control of the House. And since the civil war, the outside party has won at least that number in all but just four elections.

Well, a new CNN poll suggests this year won't be any different, despite all the Democrats' attempts to rally their base around enmity for former President Trump and the events of January 6th. The poll found that 6 in 10 Americans disapprove of how Joe Biden is handling his presidency. Even worse, 56 percent of that group say there's literally nothing they approve of Biden having done so far.

James Carville once famously said it's the economy, stupid. Well, disapproval for Biden's handling of the economy is now at 62 percent. When asked their top-two domestic policy issues, reducing inflation was named by 42 percent.

How's that going? Well, this week came numbers from the Bureau of Labor Statistics. Consumer prices rose 7.5 percent over the past 12 months. That's the most in 40 years. While real wages declined 1.7 percent. Gas prices still up 40 percent from a year ago which explains why President Biden reacted the way that he did during his first TV interview. It was this week with Lester Holt, first of the year.

(BEGIN VIDEO CLIP)

LESTER HOLT, NBC HOST: I think it was back in July, you said inflation was going to be temporary. I think a lot of Americans are wondering what your definition of temporary is.

JOE BIDEN, PRESIDENT OF THE UNITED STATES: Well, you're being a wise guy with me a little bit. I understand that's your job.

(END VIDEO CLIP) SMERCONISH: Supply chain issues are affecting everything from food in the supermarket to computer chips to auto parts. And, of course, there's now Canada where a so-called trucker blockade which started as a vaccine mandate protest now further threatens the U.S. supply chain.

Internationally, the situation in Ukraine seems about to boil over with the State Department telling Americans to leave the country, quote, "as quickly as possible," with forces amassing on three sides of its border. Secretary of State Antony Blinken says the U.S. believes a Russian invasion with bombs and missiles could begin, quote, "at any time." Today, at 11:00 a.m. Eastern, President Biden scheduled to speak with Vladimir Putin.

Meanwhile, the Mexican border remains porous following a year of record arrests. In 2021, U.S. Border Patrol agents made about 1.9 million arrests. That's a record high.

And homicides and violent crime still on the rise in many American cities. Thursday night, by way of example, five cops shot in Phoenix. Thankfully, none fatally. A December, a CNN SSRS poll found that 76 percent of Americans feel the federal government is not doing enough to address violent crime.

And then there's COVID. Approval of the president's handling of the coronavirus is just at 45 percent. We've got the never-ending changes of COVID protocols. Mask on, mask off. How many shots, make one, quote, "fully vaccinated." Why can't previous infection count as immunity? Mandates implemented then paused, they're struck down. President Biden told Lester Holt he thinks Democratic governors ending mask mandates are moving too quickly but added, it's, you know, a tough call.

Here's the thing, taken together, it's tough to see any light at the end of the tunnel for Democratic efforts to maintain control of the Congress. Maybe where so many contracted Omicron, there will soon be relief from the pandemic. And that will benefit Biden. Perhaps a Supreme Court reversal of Roe versus Wade will motivate Democratic voters to vote in the midterms. But even if Democratic fortunes take a turn for the better, there is way that the midterm elections will be waged.

You have many Republican state legislatures ordering state voting laws in a way that they say is valid protection, but others alleged is voter suppression. Changes to early in person voting. Requiring voter I.D. at the polls. Sending people absentee ballot applications without their prior request. And requiring an excuse to be able to vote by mail.

But do stricter voting laws really diminish turnout? According to my next guest, not so much. He says that in the 2020 election, these voting rules had only minor effects on turnout and no effect at all on the Democratic margin in the presidential election.

[09:05:05]

So, what might that mean for 2022 where many new laws have only recently been put into place.

Joining me now is Alan Abramowitz, he is a professor of Political Science at Emory University who performed his analysis for Sabato's Crystal Ball at UVA where he's a senior columnist.

Professor, what did you do and what - and with what result? Pardon me.

ALAN ABRAMOWITZ, POLITICAL SCIENCE PROFESSOR, EMORY UNIVERSITY: Well, what I did, essentially was to analyze the variation in election laws that existed in 2020 and look at the impact of that had on both voter turnout and on the outcome of the election in the states.

And what I found was, that while there was wide variation across states in the availability of absentee voting and the availability of days of early in-person voting and other regulations. That when you looked at the impact that had on turnout and election results based on what we would have expected given the results in those same states four years earlier, what I found was that there was only a very small effect on turnout. And no effect at all on the outcome of the election at the state level.

SMERCONISH: It sounds so counterintuitive. We've spent so much time talking about all of the changes to voter laws. Were you surprised?

ABRAMOWITZ: I was a little surprised at the small effect on turnout, especially, although my results are actually consistent with some of the earlier research that's been done on things like early in-person voting and absentee voting.

What we know about those procedures is that they're popular. That people like voting to be convenient. That people take advantage of those opportunities, if you provide early voting. If you make absentee voting readily available. And that certainly was true in 2020 because of the fact that the election was taking place during a pandemic.

But what the research has shown and what my research shows is that while convenient and while widely used, there still seems to be relatively little impact on either that percentage of eligible voters who go to the polls or ultimately on which party they end up voting for.

SMERCONISH: Well, how could you possibly know what the impact would be for the midterm or for the next presidential election where so many of the laws at issue here, whether you call them voter suppression, whether you call them ballot security, many of them have only been put on the books since 2020?

ABRAMOWITZ: That's right. But we can look back at what happened in 2020. And take advantage of the fact that there was considerable variation in the accessibility of early voting and absentee voting in 2020.

For example, we had states that still required an excuse for absentee voting. We had states that mailed applications to voters. And we had 10 states that actually mailed ballots directly to voters. So wide variation. Wide variation in the percentage of the vote that was actually cast by absentee ballot.

And so, we can take advantage of that variation to see what effect did that have in 2020. And looking back at 2016 as our sort of control for that. And that's where I found that it had relatively little effect on turnout, and no effect on vote outcome.

And then using that result to project what the effect of these same sorts of variations would be in 2022 and 2024. Of course, we can't be certain that it will play out the same way, but I think that's the best prediction that we can make based on results that I found for the 2020 election.

SMERCONISH: Professor, quickly, I have built my survey question of the week around you and your data. Your bottom line is we should be more concerned about the way ballots will be counted than ballots will be cast. Take 30 seconds and explain why.

ABRAMOWITZ: Well, I think that is definitely the case. I'm much more concerned about some of the new laws and regulations that are being put into effect that have to do with the governance of elections and who gets to count the ballots, ultimately. The fact that we see challenges to election officials. The fact that we see candidates running for secretary of state across the country who are following the former president in his claims of a - of widespread fraud in 2020. We have to be concerned about how some of those officials would respond in the event that there's a close election. And there are questions raised in the future.

SMERCONISH: Alan Abramowitz, thank you so much for your time. I appreciate it.

[09:10:00]

I encourage people to read what you published at Sabato's Crystal Ball. I'll put it in my social media during the commercial break.

Now, to everybody at home, I want to know what you think. Go to my website at smerconish.com. This is the survey question. Now you know why I'm asking it.

Which do you think is a greater threat to Democracy, the way that we cast our ballots or the way that we count them?

What are your thoughts? Tweet my @smerconish. Go to my Facebook page. I'll read some social media during the course of the program as well.

This comes from the world of Twitter which says this.

"Why add fuel to the fire, Michael? The wording implies that there is a threat to our democracy. Don't we have enough mistrust now? Ugh."

CK Grammy Waiting For Spring, I think democracy is threatened. The professor tells you he thinks it's threatened. But not in the conventional way. I mean, what's - what's so unusual is here's some who actually did the analysis and found that passion moves the needle. Sure, it's important to keep an eye on laws that apply to ballot access. But in the end, people who want to come out and vote are coming out to vote. What you need to be concerned about is - more concerned -- the way in which those ballots are going to be counted. And I think that's a significant concern and threat, so that's why I'm talking about it.

Up ahead did a 2017 "New York Times" editorial falsely linking Sarah Palin's PAC to the Gabby Giffords shooting involved reckless disregard for the truth. Having heard all the evidence a jury in New York City is now weighing her case and with it, possibly, the future of American defamation law.

Plus, I know you've heard this story. A teenager figured out how to track the movements of the private jet of Tesla's SpaceX CEO Elon Musk. Musk personally reached out to him and asked him to stop.

Jack Sweeney is here to explain what he is up to.

(COMMERCIAL BREAK)

[09:15:55]

SMERCONISH: When I heard the news about Elon Musk's jet being tracked by a teenager who, by the way is my next guest, I immediately thought of a scene from the legendary movie "Wall Street." You remember in it a young trader is played by Charlie Sheen and he's selling his soul to work for Gordon Gekko played by Michael Douglas. In this scene, he's been enlisted to spy on a business rival.

(VIDEO PLAYS SCENE FROM MOVIE "WALL STREET")

SMERCONISH: 19-year-old Jack Sweeney has been tracking the Tesla SpaceX billionaire's private Gulfstream. On Twitter, Sweeney's account called Elon jet uses public records to map the flights. He also tracks the planes of other moguls like Bill Gates and Jeff Bezos.

But Musk sent Sweeney a private Twitter message asking him to stop. Musk's initial direct message to him which Sweeney shared with us, but we've not been able to verify by SpaceX was this.

"Can you take this down? It is a security risk."

Sweeney replied. "Yes I can but it'll cost you a Model 3 only joking unless?"

Sweeney says Musk offered him $5,000 to take it down, writing, "I don't love the idea of being shot by a nutcase."

Sweeney countered asking for $50,000. The last message exchange was January 19 when Musk said it didn't feel right to quote, "pay to shut this down."

And Sweeney replied, "Options other than remuneration like an internship would make taking it down a lot easier."

The Elon Jet account currently has more than 375,000 followers. Recently, the CEO of a car leasing company offered Jack a free three- year lease on the Tesla Model 3 to permanently remove the account. But he's still holding firm.

We reached out to Elon Musk. He apparently was not available.

But Jack Sweeney joins me now. He's a freshman at the University of Central Florida. Jack, what are you majoring in and what is your career aspiration?

JACK SWEENEY, TEENAGER TRACKING ELON MUSK'S PLANE: Majoring in I.T. here at UCF. And I want to do some kind of software in aviation like I am right now, basically.

SMERCONISH: What was the plan when you started tracking Elon Musk's Gulfstream?

SWEENEY: Yes. I was a fan of Elon and Tesla and SpaceX and everything he's got going on. And I was just interested in where he's going or it's just a hobby to see what business he was up to.

SMERCONISH: Fair to say, though, that never was the goal, hey, I'm going to track him and get him to pay me money?

SWEENEY: Yeah. No, I mean I was a fan. I'd never want to like just to try to get money out of him.

SMERCONISH: What about the concern that he raises that perhaps this poses a security threat?

SWEENEY: You know, there is some merit to that. But, you know, I don't know if he's being completely truthful that it's all security. Maybe he just doesn't want to be seen. And I don't think the security risk -- it's that big because even just recently, Elon had an event in Texas. Someone asked him if he would come to this public event, and he said, sure. If he can go to events like that, I don't think he has that big of a security risk.

SMERCONISH: Listen. "Wall Street" the movie was before your time. But it's a hell of a film.

SWEENEY: Yeah.

SMERCONISH: And impacted my generation. And I don't know if you were able to see the clip that we played. But here's the point I was making. There's probably a great deal to be learned about Musk businesswise by knowing his physical whereabouts. Had that occurred to you?

SWEENEY: Yeah, it has. After I started it, you could see where he's going that you haven't possibly seen before, all the Tesla factories, all the SpaceX places, he's going to those. And you can see what's going on.

SMERCONISH: Has he made it more difficult for you to track his flights?

SWEENEY: Yes. He got the most -- the highest level of blocking. But actually, just in the past couple of days, it's been turned off. So, I mean, have they given up? I guess. It's really strange.

[09:20:03]

SMERCONISH: Is this based on all publicly available information? If I had your level of knowledge and sophistication, would I be able to do exactly what you're doing?

SWEENEY: Yeah. You'd be able to track this flight like I am on Twitter.

SMERCONISH: Who else are you tracking and why?

SWEENEY: We have Bill Gates, Jeff Bezos, Trump, Mark Zuckerberg, Mark Cuban. And, you know, just people are interested. After I started the first one, people were asking for others. So I started that and adding them.

SMERCONISH: Has anybody else beefed the way that Musk has?

SWEENEY: No. I mean, the accounts aren't as big. You know Musk is really big on Twitter so you can understand why it's gotten as big as it has. So I don't think there's as much attention on other ones like Elon's.

SMERCONISH: So what is your current demand, relative to Musk, what will it make for you to go away and stop this?

SWEENEY: Still a Tesla or $50,000. I mean, I'm not going to up it. There's no need to.

SMERCONISH: I bet people who are watching this are making a determination as to whether this is ambition, this is in the American spirit or whether it gets a bit obnoxious, you would tell them what?

SWEENEY: It just started as a hobby. And I don't want to let go of a hobby for something that's not really going to change my life, you know. It's something I enjoy doing and I find it really cool to do.

SMERCONISH: But the new Tesla, that would change your life?

SWEENEY: Yeah. I don't have a car right now. And it would be great to have a car and it would be a really cool car.

SMERCONISH: I'm sure that he probably -- I don't know. I'm a Musk fan myself. I'm sure that he admires this in part but thinks that if he settled up with you the way you want, he's opening up a door that you know nothing good is coming.

SWEENEY: Yes, other people would want to do it, too.

SMERCONISH: Yeah, I hear you.

SWEENEY: Yes, other people would want to -

SMERCONISH: All right. Well, I wish you good things - I wish you good things with your studies. SWEENEY: Thank you.

SMERCONISH: Let's see what you're saying via my @smerconish Twitter and Facebook pages from the world of Twitter.

Laugh out loud. I have owned a Tesla for six years and you are a relatively new owner.

Yes, I am.

Elon Musk has been tracking our private cars and skill set for years. How do you feel now?

That is so funny.

Quick story. So in our house, we were playing Oculus this week which is owned, I think, by Facebook. And one of my sons said to me, dad, imagine if the U.S. government said, we want to put a camera in your living room. And we would like - we would be like, don't tread on me, right, over my dead body. And yet, voluntarily, to your point about Tesla, like we've given Zuckerberg and Facebook that window into our living room by playing Oculus. It's all so true. It's all so true.

I want to remind you to go to my website at smerconish.com and answer this week's survey question. Which is a greater threat to Democracy: The way we cast ballots or the way we count them?

Up ahead, Sarah Palin's defamation case against "The New York Times" has gone to the jury. Now they've got to decide if the 2017 "Times" editorial that linked her PAC to the 2011 shooting of Congresswoman Gabrielle Giffords involved a reckless disregard for the truth.

I will talk to a reporter who has been in the courthouse.

And the NCAA is allowing champion Penn transgender swimmer Lia Thomas to compete in this week's Ivy League Championships overruling U.S.A. swimming's new testosterone rules and ignoring many of her own teammates who say she has an unfair advantage. I will ask an Olympic gold medalist to weigh in.

(COMMERCIAL BREAK)

[09:28:15]

SMERCONISH: The defamation trial of Sarah Palin versus "The New York Times" now in the hands of a federal jury. This week, both Palin and former "Times" editorial page editor James Bennett took the stand. The "Times" was wrong when it published a June 2017 editorial titled "America's Lethal Politics."

The issue now is whether they had knowledge of falsity or reckless disregard for the truth when they published. The editorial had been prompted by the shooting at a congressional softball practice that wounded Republican Congressman Steve Scalise. It brought up the 2011 shooting of Democratic Congresswoman Gabby Giffords in Arizona and wrongly stated, twice, that her shooting had been quote-unquote, "incited" by this ad from Palin's Political Action Committee.

It also mischaracterized the ad as having put targets on members of Congress when in fact, it had targeted congressional districts. Within a day, that wording was removed. And the correction was appended to the editorial.

Testimony revealed how the falsehoods ended up in print. The piece was written by a "Times" staffer in Washington D.C. named Elizabeth Williamson. On deadline, editorial page editor Bennett added the incitement language then per "Times" procedure called playback. He twice sent the revisions back to Williamson.

In her testimony last week, Williamson testified that she had been the one to introduce the incorrect description of the Palin ad but also that when sent the final revision she, quote, "did not read it thoroughly, in retrospect, I wish I had."

While Bennett took responsibility, he said this about the process. Quote, "This is my fault, right? I wrote those sentences and I'm not looking to shift the blame to anyone else, but yeah, I mean, this is why we send playback to writers, because they're the ones who reported the story. They're the ones who are in possession of the facts and it's important for them to review pieces to make sure that others haven't introduced errors."

[09:30:08]

The higher threshold for defamation cases involving public figures was established by the 1964 Supreme Court ruling in a case called "New York Times" versus Sullivan. And under Sullivan, the "Times" should only be found liable if it either had knowledge of falsity or reckless disregard for the truth. In this case the issue probably focuses more on whether the "Times" had a reckless disregard for the truth.

And here is how U.S. District Court Judge Jed Rakoff defined reckless disregard for the jury before they began their deliberations. Quote, "Even irresponsible reporting or a demonstrated failure to follow professional journalistic standards does not on its own establish actual malice, unless the plaintiff has proved that there was a high probability that Mr. Bennet actually doubted the truth of the challenge statement you are considering and, nevertheless, consciously chose to disregard the high probability that the statement was false."

Joining me now is Josh Gerstein, senior legal affairs reporter for "Politico" who has been in the courthouse covering the trial for them. Josh, the "Times" screwed up. They acknowledge that. Now the issue for the jury is that actual malice standard, knowledge of falsity or disregard for the truth. Is there any evidence in this case that the "Times" had knowledge of falsity when they published the editorial?

JOSH GERSTEIN, SENIOR LEGAL AFFAIRS REPORTER, "POLITICO": Well, I mean, if you look at the "Times" as a whole, as an institution, they certainly did, Michael. I mean, it was well established by that time. We're talking about six years after the Arizona shooting in which Gabby Giffords was badly wounded and six other people, including a federal judge and a 9-year-old girl were killed. It was pretty well established that whatever Palin's PAC had said, had put out there, there was really no sign that that had anything to do with this mentally deranged individual, Jared Loughner, who carried out that shooting.

So people on the "Times" staff knew. And, in fact, there were emails basically in James Bennet's email box that he acknowledges he read with copies of stories that had that fact in it. The question is sort of, did he have that fact in his mind when he amped up this editorial and the copy that was sent up to him from Washington?

SMERCONISH: Interesting to hearing your response because I have thought that the vulnerability that they faced was more on the recklessness standard by the way in which the incitement got inserted into that editorial.

GERSTEIN: Well, I think that that is probably a bigger vulnerability. Because if you think about it, the notion that James Bennet or other people in the editorial staff would intentionally insert falsehoods into the editorial seems just rather far-fetched. It doesn't make sense as the "Times" lawyers said to the jury just yesterday.

I mean, why would a journalist want to put in a fact that by, you know, 10:00 that night or 5:00 the next morning, they were scrambling to fix and correct, a process which is certainly considered very embarrassing by the journalists I work with. And everyone on the stand for "The New York Times" said they considered it to be a huge embarrassment for the paper. It doesn't make much sense. The question I think is more, how did this slip through the cracks and was the process so shoddy that it rises to the level of recklessness?

SMERCONISH: Josh, I know we're in the weeds but if I have to say as plaintiff's lawyer if I were Sarah Palin's lawyer I would not like the charge that the judge gave when he defined reckless disregard. Put it back up on the screen, Catherine, if we can.

"Even irresponsible reporting or a demonstrated failure to follow professional journalistic standards does not on its own establish actual malice, unless the plaintiff has proved that there was a high probability that Mr. Bennet actually doubted the truth of the challenge statement you are considering."

I'll stop right there. I think the judge is implying that Bennet had to have a knowledge of falsity. This is just me speaking and perhaps conflated knowledge of falsity and reckless disregard for the truth.

Here's the point I'll make to you. This case will not end with a verdict from this jury. There's a lot here and this is what, I think, Palin wants that is going to be handled by appellate courts. Do you agree?

GERSTEIN: Yes, I think that that's true. You know, her lawyers indicated from the beginning of this case that they thought it was a good vehicle to challenge "The New York Times" versus Sullivan standard that's been the bedrock of defamation law for what, you know, more than half a century now. I have my doubts now about whether this is a great case for sort of reasons about how New York has changed its laws to embody that actual malice standard on a permanent basis regardless of what the U.S. Supreme Court does. But there's no question that's what they wanted. And remember, she's only asking, really, the jury for a dollar here.

[09:35:02]

Her lawyer talked about a dollar or $10.00. It does seem like it's some kind of symbolic battle that maybe aimed at making some change in the law, rather than making her whole, if she in fact was damaged by this.

SMERCONISH: Yes, a great point. That she was not able to bet a punitive damage request before this jury. And so, as you point out in your "Politico" reporting her lawyer in the closing argument said essentially, you know, give her a dollar.

Josh, thank you so much. Your reporting on this has been terrific.

GERSTEIN: Thanks, Michael. Take care.

SMERCONISH: Checking in on your social media reaction. What do we have from the world of Twitter?

Everyone should be rooting against "The New York Times." The media has lost their way and needs to be held accountable. That goes for left and right outlets.

Hold on, Jimmy, whoa, whoa, whoa, whoa. It's a fascinating case. I'm interested in it because I want to know whether "New York Times" versus Sullivan should apply to a world in which there's an internet and everybody has a platform.

I mean, I'd buy into the premise of the fundamental case which is the precedent. Which is to say, public figures, someone like me, have access to the media airwaves and consequently can defend themselves in a way different from someone who's not a public figure. That makes intuitive sense to me.

But whether it stands the test of time now that everybody with, you know, pajamas with feet in them and a computer becomes a journalist I think it's worthy of a second look. That's what I'm saying. But it's a really interesting case. We'll see what happens this week.

I want to remind to you answer this week's survey question at Smerconish.com. Talked about it at the outset of the program. Which is a greater threat to democracy? The way we cast ballots or the way we count them?

Still to come, this week record breaking transgender Penn swimmer Lia Thomas will be allowed to compete in the Ivy League championships. This goes against new testosterone rules put in place by U.S.A. Swimming and a letter from 16 teammates claiming Thomas has -- quote -- "advantages that can only come with male puberty." I'll talk to the person who helped those teammates draft and send the letter. Nancy Hogshead-Makar, herself a three-time Olympic gold medalist swimmer.

(COMMERCIAL BREAK)

[09:41:51]

SMERCONISH: An NCAA ruling will allow a record-breaking collegiate trans swimmer to compete in Ivy League championships which kick off this Wednesday, as well as NCAA championships. This despite a recent rule change by USA Swimming, the sport's governing association, which reduced the permitted amount of testosterone in trans swimmers. And despite a letter from 16 of her teammates saying that she has an unfair advantage adding to be sidelined or beaten by someone competing with the strength, height and lung capacity advantages that can only come with male puberty has been exceedingly difficult. The letter was delivered on their behalf by my next guest.

The controversy is about 22-year-old University of Pennsylvania swimmer Lia Thomas, a senior who came out in 2019 after competing for the men's team. This season is her first on the women's team.

At an Ohio meet early in December, Thomas set three school records and two national records. In the 1,650-yard freestyle she outpaced her second-place teammate by 38 seconds. Thomas was only given one interview to the podcast SwimSwam, it was in December. And here's part of what she had to say.

(BEGIN VIDEO CLIP)

LIA THOMAS, TRANSGENDER SWIMMER, UNIVERSITY OF PENNSYLVANIA: We expected there would be some measure of pushback by people. Quite to the extent it has blown up, we weren't fully expecting.

I just don't engage with it. It's not healthy for me to read it and engage with it at all. And so, I don't. And that's all I'll say on that.

(END VIDEO CLIP)

SMERCONISH: After USA Swimming which has some 400,000 members tightened its requirements for elite trans athletes the group of Thomas' teammates sent their letter asking the school and league not to challenge the rules. It read in part, "We fully support Lia Thomas in her decision to affirm her gender identity and to transition from a man to a woman. The biology of sex is a separate issue from someone's gender identity. Biologically, Lia holds an unfair advantage over competition in the women's category as evidenced by her rankings that have bounced from #462 as a male to #1 as a female."

To avoid retribution the 16 swimmers who remain anonymous it was sent by my next guest who has earned her perspective on these issues. Nancy Hogshead-Makar won three gold medals swimming in the 1984 Olympics, the most decorated swimmer of those games. Nancy Hogshead-Makar joins me now.

Today she's a civil rights lawyer and CEO of Champion Women. That's a women's advocacy organization. I should mention here that we invited Lia Thomas to come on but did not hear back.

So, Nancy, this is confusing. The NCAA said individual sports can set their own rules but then did not honor the decision of USA Swimming. Do I have that right?

NANCY HOGSHEAD-MAKAR, OLYMPIC GOLD MEDALIST IN SWIMMING/CEO, CHAMPION WOMEN: You do. It's unusual that the NCAA would ask USA Swimming, a national governing body that the two sports organizations typically have very little to do with each other, but it asked the sports organization to come up with rules.

[09:45:04]

They did so and they did so in a way that we have a petition out that's signed by over 3,000 people that actually prioritized biological women. And the NCAA decided not to accept those new rule changes.

SMERCONISH: The 16 teammates, you don't represent them in a legal sense, I should make clear, but you played a role in facilitating their perspective to be heard by the Ivy League. Do they have concern of being ostracized? Do they have concern about maybe even job prospects if they were portrayed on this sharp divided cultural issue as being at odds with the swimming objectives of Lia Thomas?

HOGSHEAD-MAKAR: Oh, they've been told that if they speak out they will never get a job again. They've been told like, this is the way that it is, this is what Penn -- and I have to say it's not just Penn, it's all the Ivy League, that none of the athletes have been given the opportunity to really speak out on this.

So, you have four swimmers that have come out publicly with their names being supportive of her. But all of the women who are supportive of biological women, the women's category, they're not allowed to speak out. I mean, this is the Ivy League. These are our best institutions.

SMERCONISH: Well, I want to make clear that there's a divided of opinion within the swimming community. I made reference to the letter that the teammates sent. But I also made reference to more than 300 swimmers under the banner of Schuyler Bailar from Harvard, saying, hey, we support Lia Thomas and her right to compete.

So wherein lies the resolution? How does this end?

HOGSHEAD-MAKAR: From what I can tell that until women, biological women, have a seat at the table, they can make these decisions on -- this is our -- it is women that built the women's sports category, as distinct from the men's category. You and I have talked before about how unique and kind of weird it is that we do have sex segregation in sport. We have it almost no place else in life. And the reason for that is biology.

Because men are between eight and 100 percent better than women are athletically, the performance gap between them. If women want equal opportunities, they have to have their own team. They need to have those separate opportunities. We are -- we're looking at for the future, making sure that we have a seat at the table, because for this season, I think that Lia Thomas is going to be competing.

SMERCONISH: Quick final answer, if Lia Thomas sets records this week at the Ivy League championships do you think they should stand? Do you think they will stand?

HOGSHEAD-MAKAR: Yes, two different questions. One is, should, and will they? The East Germans that I competed against who were doped to the gills they -- their records stood even after the wall came down and the Stasi Records were open, and we know that for a fact that they were doping as much as humanly possible. A lot of them actually transitioned because they'd been on male hormones for so long.

We know that in the past, they have not changed those records. Whether or not we could get those records changed -- but whose records are at stake here are Missy Franklin and the great Katie Ledecky. They're college graduates. And I think that they should deserve to stand. Those are -- those are amazing athletes that it really should be a biological woman's record.

SMERCONISH: Nancy, thank you so much. I appreciate you being here.

HOGSHEAD-MAKAR: Thank you very much for having me, Michael.

SMERCONISH: I've said before, I'm for fairness and inclusion. I don't know if that's possible in this case, if there's a solution. I just -- I'm not seeing it. That's fair to all and allows all to be inclusive.

Still to come, more of your best and worst tweets and Facebook comments. And I'll give you the final result of this week's survey question. Go now to Smerconish.com and answer this question, which is a greater threat to democracy? The way that we cast ballots or the way that we count them?

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[09:54:02]

SMERCONISH: Time to see how you responded to this week's survey question at Smerconish.com. I was asking, which is a greater threat to democracy, the way that we cast our ballots or the way that we count them?

Professor Alan Abramowitz from Emory was here at the outset of the program making the case. And he will be pleased with that result because that's what he said. Seventy-six percent of more than 16,000 of you who voted say it's the counting.

His premise was to say, hey, passion is moving the needle. If people want to get out and vote, they're going to get out and vote. We need to pay more attention to the counting process and the changes in the law that relate to that.

Catherine, what do we have from social media this week? The greatest threat to our democracy is the unwillingness of some to accept the count.

Yes, good point, Fran. Meaning the count is just fine, but people are discounting it, no matter how we count it.

What else came in? Let's run through a quick -- a couple of them quickly if we can.

How do you get around the obvious? Thomas was nothing special as a male swimmer and now is crushing the competition as a female.

[09:55:02]

Michael, I think that's a critical data point to go from 426 to number one is pretty compelling evidence that something is different, right?

One more. Let's go.

If the "New York Times" -- it was the "New York Times" who gratuitously dragged her into a story that had nothing to do with her.

There's no doubt about that. Hey, listen, the "New York Times" blew it. The "New York Times," in my opinion, clearly negligent, but did they exhibit a reckless disregard for the truth relative to Palin?

They were wrong. They acknowledged they're wrong. It's the recklessness standard to keep your eye on. I'll see you next week.

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[10:00:07]

CHRISTI PAUL, CNN ANCHOR: We are always so grateful to have you with us.