What are the legal issues at play in disputed 2020 election?
there you see pennsylvania which will not be called tonight we’ve already come to that conclusion or today or today i’m sorry it might be called later today but tonight later tonight let’s bring in our legal panel tonight jonathan turley george washington university law professor and constitutional attorney and andy mccarthy former federal prosecutor both are
fox news contributors jonathan do you have any calls to make first of all okay can you please tell us who won in wisconsin i predict this will be an utter irredeemable mess uh you know a few a few days ago i said that i was asked what my worst case scenario would be and i said that we would finish this night with the states breaking on both sides uh under 270 and left only with pennsylvania and the reason is because the pennsylvania laws and their standards are an utter mess and we
will look with great longing back at the age of hanging chats i mean these are these are really controversial decisions that have been made in pennsylvania and it’s going to be a very difficult state if it’s going to be the focus of this type of judicial review jonathan can you talk just briefly about the fact that this is a federal office but there is no federal standard for
elections and it is done basically by each jurisdiction that’s right the constitution leaves it to the states the state legislatures to establish the rules for voting and part of the controversy that has been growing with this election has been the intervention of state and federal courts in changing those state election laws pennsylvania is indeed the most controversial it not only allowed for an extension in which they would accept ballots but they also said that there would
not be a requirement that signatures match effectively that it basically did away with uh that condition for accepting ballots but also it said that even if the date the postmark date on the ballot was unclear you would give the benefit of the doubt to the voter all of that really begs for challenges and this is not like you know 2016 we were up this late i was up
with you this late i but this reminds me more of 2000 i mean it has that feeling and it’s not a good feeling tell us about it andy mccarthy you know when you look at how this is stacking up tonight and the potential litigation that could come into play in pennsylvania and perhaps even in other states what’s your take well i agree with jonathan that it’s a mess but what’s really infuriating is that it’s it was an avoidable mess i i started writing out i’m hardly the only one in the middle of
october imploring that the supreme court needed to decide this before the election because if they decided before the election it would simply be to dictate or to or to set what the rules of the voting tabulation in pennsylvania would be whereas if they waited until after the election it would look like the court was deciding the election which as chris wallace said before the court shouldn’t want that doesn’t want that the country shouldn’t want that so i think if they had if they
had taken this case beforehand as they should have we wouldn’t be in this position now and i think chief justice roberts made a very risky bet which was that maybe they could dodge this bullet completely and you know the reason that’s pushing all the chips to the middle of the table is there was a very good chance that pennsylvania would end up being
decisive and andy can you just remind everybody was that a 4-4 decision yes well there’s there’s been two decisions that it came to the court first on the basis of a stay they were asking for the uh state supreme court’s rewrite of the rules to be stayed on and at that point chief justice roberts voted with the three liberal justices on the court to create a 4-4 deadlock which meant the court wouldn’t do anything and the pennsylvania ruling would stay last week the republican state
committee asked the court for an expedited ruling on the merits of the case that is whether the state supreme court was allowed to change the rules the way they did in the way jonathan just explained and at that point the court said it’s too late at this point five days before the election for us to make a ruling on the merits but justice alito in an opinion that was
joined by justice thomas and justice gorsuch said that doesn’t mean that we can’t preserve the status quo ante so what he said was take all the ballots in after the for the three days after the election as the state court has said but segregate them so that we can make a ruling if we have to about whether those votes will count or not and that’s where we’re headed i think yeah you’re looking live by the way of philadelphia where they are still counting we’re told by the secretary of state
there that they’re on eight-hour shifts and you can see them in the back kind of doing the ballots they had a bigger staff earlier but they’re rotating crews in continuing the count jonathan so that brings us to the fact that justice now amy coney barrett is in this position in this court that is now nine uh filling the spot of uh deceased ruth bader ginsburg and democrats on during that hearing were saying you have to recuse yourself if an election case comes to the supreme court after november third i assume we’re going to hear that more we will and it’s utterly ridiculous and it’s also incredibly
insulting there’s no reason under the usual interpretation of the standard for recusal for justice barrett to withdraw from this case she doesn’t have a personal interest in this case she doesn’t have a financial interest in this case she didn’t work on underlying litigation or cases related to any appeal none of those conditions exist i know of no case in history where a justice would recuse herself simply because she was nominated shortly before an election and some people view her as a
some type of judicial shill that i don’t expect that’s going to happen i would be very surprised if the liberal justices would even support or suggest that now we have no idea how she will vote on these types of issues they are difficult you know the the the conservative justices that andy was referring to noted that there are both state and federal rights of voting that there this just because a state court rules on voting doesn’t mean the supreme court has no role at all but it is important
to note that when state courts rule on state law the federal courts particularly the united states supreme court tend to defer on issues of this kind so there’s a difference you know so wisconsin had a case go for the supreme court it was decided by a federal court and roberts joined the conservatives in in in rejecting that extension and said that that federal judge was using a form of federal intervention into state law but when a state ruling came up roberts had a bit of a sticker
shock and said that that he felt he would leave it as it as it stood so nothing has truly been resolved in many of these contests we started yesterday in the red zone that’s the difference from other uh from past presidential elections we usually get to litigation at some point by the end of the day we were already triggering or seeing these lawsuits triggered in each of these swing states now many of those cases are placeholders you you bring the challenge in case the vote is
closed and you have a foundation to try to challenge the results but we have a lot of challenges including one out of dc where the united states postal service failed to comply with an order of a federal judge to do a nationwide search yeah and that judge is judge who many conservatives feel is is anti-trump administration so that could be very lively jonathan you know i look back to 2000 i covered uh tallahassee recount there 37 days and nights uh in hanging chats and i remember
at the beginning democrats felt that their pr message their talking point was that you have to con continue the count you have to count every vote we’re already hearing that from the former vice president tonight count every vote and it does sound like a good thing to say sure count every vote but republicans in some cases are going to be saying no stop the vote
that’s right and when you hear that line some of us who were involved in covering 2000 crawl into fetal positions because it is um it’s a real nightmare and part of the problem by the way these challenges in places like nevada the republicans are arguing that the way that ballots are being handled is going to make it difficult for them to essentially walk this cat backwards to try to look at balloting that might be improper so there are layers of challenges here which are going to
create serious problems for the court and when people say count every ballot in a situation like this it could prove utter madness we’re talking about millions of ballots that have come into these polling centers in a fairly novel and new way it’s not that mail-in voting is new it’s just mail and voting to this degree is new in places like nevada and other states and then you get into the inevitable debate in those counts of whether or not they’re valid you know whether the signature matches
like the instance in Pennsylvania and in other states as well i mean you know andy there’s going to be a lot of subjectivity in the question of whether or not all these ballots are valid in many cases yeah and and i think to to the point that Jonathan just made you know a lot of times things get sort of sketched out in front of an appellate court and it sounds like it’ll work just fine but you know the fact that you represent to the supreme court as pennsylvania has that they will segregate the votes that come in after november 3rd that may sound great in a courtroom but whether as a practical
the matter they’ll be able to carry that out we’re already hearing some rumblings there that uh it at least some places it’s hard to canvas and segregate at the at the same time um i i’ve wondered from the start what happens if they come back and say gee we goofed you know sorry we couldn’t segregate them then what yeah and so we have a bunch of you know disaggregated bunch of ballots and they can’t segregate it the one positive i suppose is we are at 1 50 in the morning east
coast time and uh there aren’t any riots or looting even though we’re boarded up here in manhattan and Georgetown and washington and other places around the country but as this protracted effort goes on andy the potential for stuff happening uh goes up yeah of course it does and i think you know obviously the reason that all the preparations were done was because there was an expectation that uh it would be uh if president trump were elected that would be the main
thing that would precipitate a lot of uh a lot of violence just because it’s thematically consistent with what we’ve seen the last five months or so and you know that hasn’t happened yet because i guess we’re all still on tenterhooks let’s hope it doesn’t happen um because we haven’t shown that we’re famously good to this point at controlling all that I i just you know thank heavens for peace for one night yes uh jonathan terrelly andy mccarthy thank you very much
