Could the Supreme Court actually decide the 2020 election?

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Could the Supreme Court actually decide the 2020 election?

President Trump vows to take election fight to high court; Tom Dupree and John Yoo discuss on 'Your World'

This is a rush transcript from “Your World with Neil Cavuto” November 4, 2020. This copy may not be in its final form and may be updated.

NEIL CAVUTO, FOX NEWS ANCHOR:  All right, Bill, thank you very, very much.

Read it and who makes the leap? You are looking at a map of the United

States and the race to 270 electoral votes to decide who becomes our next

president of the United States.

Right now, Joe Biden, thanks to a pickup with Wisconsin, and now waiting to

address the nation, he is within 22 points, 22 electoral votes of being the

next president.

Now, that has changed things mightily right now, since declaring Wisconsin

for him. He picks up Michigan, he picks up Nevada, he picks up some

combinations therein, he's there. He's there at that 270.

We're going to go into the possibilities, get a read on that. We're also

going to be hearing from the former vice president, who is addressing a

crowd in Wilmington, Delaware. Not quite sure exactly what he is going to

say.

We do know that lawsuits are flying fast and furiously. We do know as well

that the markets, which have been all over the map right now, by day's

ended, had surrendered some of their heady gains, still impressive. We will

get into why they surrendered those gains, but still why they're up triple

digits for three days running, even in the middle of all of this

conclusion.

Let's first get a read for Jackie DeAngelis, taking a look at where this

race now stands and a couple of possibilities that could clinch it for one

or the other.

Hey, Jackie.

JACKIE DEANGELIS, FOX BUSINESS CORRESPONDENT:  Hey, good afternoon to you,

Neil.

Where we stand at this hour, even with Wisconsin being called for Joe

Biden, both candidates still have a path here. But I want to focus for one

second on Pennsylvania and its 20 electoral votes. You can see here

President Trump is leading 52 percent to Biden's 46 percent.

However, there were three million mail-in ballots. One million of those

still need to be counted. Look, the tally up here, only 85 percent of

everything has been counted so far. So, Pennsylvania could potentially

shift. The Biden camp is saying a lot of those mail-in ballots will

probably favor the vice president, and Trump is still holding steady there.

We may even see some legal challenges here. We're still waiting on more

word there.

But I want to go to those what-if scenarios that we were talking about,

because so crucial here. Let's consider Alaska done for President Trump. In

the South here, in Georgia and North Carolina, he has a lead. So let's

assume for the moment that he holds on to those two states.

What happens with Joe Biden? Well, he got Wisconsin. Let's say he gets

Michigan and, as you mentioned, let's say he gets Nevada. Boom, 270.

There's his path right there.

But things could change. Let's take Nevada back, because, Bill Hemmer said,

it is very close to call still. And let's go ahead and say the president

does get Pennsylvania. All of a sudden, the game changes, 274.

I just want to go back to the Biden scenario for a moment, because it was

so interesting. Yesterday, his campaign put out this notion he doesn't need

Ohio, he doesn't eat Pennsylvania, Texas, or Florida, and he still has a

path. Indeed, I just showed it to you. '

But what's interesting about his path at this moment, and I suppose the

president's as well, they're both murky. Nobody has it outlined in a clear

way just yet, Neil.

CAVUTO:  All right, Jackie, thank you very, very much.

So, if I'm reading what you're saying correctly, Jackie, Michigan, Nevada,

combine those 22 electoral votes, the former vice president is there.

But, to your other point, Jackie, we're not there.

(LAUGHTER)

CAVUTO:  So, until you get to 270, man, oh, man, you have to wait, wait,

wait.

Thank you, my friend. She's been great helping out FOX Business, FOX News.

We're all one big team here. We're really into this.

So is John Roberts. He has traveled the country right now trying to make

sense of that map of the country, where things are going right now.

Do not assume, simply because he is trailing in that electoral vote count,

that the president has given up the fight.

John Roberts, I imagine far from it.

JOHN ROBERTS, FOX NEWS CHIEF WHITE HOUSE CORRESPONDENT:  No, no, there are

still some big states that have yet to be declared at this point, Neil.

And I just got off of a conference call with the Trump campaign manager,

Bill Stepien, and senior adviser Jason Miller. And they insist that, in the

Keystone State, Pennsylvania, the math is there for President Trump to hang

on to a victory.

In fact, they are boldly predicting that it has already happened. Listen to

what Stepien said.

(BEGIN AUDIO CLIP)

BILL STEPIEN, TRUMP 2020 CAMPAIGN MANAGER:  We are declaring a victory in

Pennsylvania. This is not based on gut or feel. This is based on math.

We feel very, very positive that the president and vice president will

again deliver a victory in Pennsylvania. In fact, we have a high degree of

certainty that the margin won't be close.

(END VIDEO CLIP)

ROBERTS:  they're clearly not just optimistic about things, but very

confident.

Meantime, the lawsuits, as you pointed out at the top, Neil, have been

flying fast and furiously, the Trump campaign announcing this afternoon in

the last hour that it is going to intervene in a case already before the

Supreme Court of the United States, which would invalidate the three-day

post-Election Day counting period for mail-in ballots.

They also want the voting -- vote count stopped in Pennsylvania to allow

greater access to the vote counters, so that they can see if the ballots

are in fact valid. That's the same sort of lawsuit that they have already

filed in Michigan.

The Trump campaign is also predicting that, by Friday, President Trump will

be able to claim victory in the Grand Canyon State of Arizona. The Trump

campaign insists that there are some 605,000 ballots outstanding, most of

those Election Day voters that typically support President Trump.

They say that President Trump only needs to get 57.73 percent support among

those ballots in order to overturn, because it's been declared now by FOX

News and the Associated Press, overturn the call in Arizona and pick up the

win there and Arizona's 11 electoral votes.

Now, if the president were to reverse Arizona, pick up Georgia, North

Carolina and Pennsylvania, that would give him 274 electoral votes, without

Michigan or Minnesota -- Michigan or Wisconsin. And that would give him the

win.

So, it's not to say that any of this is going to happen, Neil, but the

Trump campaign very confident this afternoon on this conference call that

that scenario will come to pass. And they are insistent that Arizona is

going to break their way, ultimately.

CAVUTO:  Yes, our own Decision Desk on this sticks by that call for Arizona

for Joe Biden. So, we will see.

Obviously, they're looking at two different sets of numbers.

But, John Roberts, thank you very, very much for that update.

Fair and balanced right now, I want to get the read from the Biden camp.

We are supposed to be hearing from the former vice president momentarily.

Peter Doocy in Wilmington with the very latest.

Peter, what are we expecting to hear?

PETER DOOCY, FOX NEWS CORRESPONDENT:  Neil, we know the Biden campaign is

already asking Americans and donors for help hiring Democratic lawyers to

beat back challenges from the Trump campaign in court over the coming days

and weeks.

The campaign manager sent out an e-mail blast. And it says this in part:

"The Biden Fight Fund will fund election protection efforts for Joe Biden

and Democrats up and down the ballot."

So, they're going to fight, even though they believe they have already won

the election. They're kind of down on their chances in North Carolina. They

see Georgia as more of a toss-up and Pennsylvania as one that's going to

take a few days.

But the campaign tells us that, by mid-afternoon, they think they're going

to take Michigan off the map from Trump. And it's mid-afternoon.

(BEGIN AUDIO CLIP)

UNIDENTIFIED MALE:  We don't have to do anything but protect the rights of

voters and to stand up for the democratic process. If it's attacked, as the

president suggests it will be attacked, we're going to successfully repel

that attack.

(END AUDIO CLIP)

DOOCY:  Kamala Harris's motorcade got here about an hour ago. Joe Biden's

motorcade got here about 10 minutes ago.

And we were just told by the campaign that he will take the microphone in

two minutes. So, countdown to that -- Neil.

CAVUTO:  Peter, they have to walk a fine line here, right?

I mean, they -- they're closer to 270 than the president is. He's -- but,

in the fight itself, there's a scenario where either man could get to 270.

He has the more promising routes.

But is that the kind of thing they're going to say, that there's nothing

here to hint of the reason for the litigation that the president's going to

be taking? Or how far does he go in his remarks?

DOOCY:  Well, we haven't heard anything that this is going to be a victory

speech.

And part of the reason that we are led to believe that is because the

victory stage is still set up outside here. And he's not going to use that.

But the Biden campaign still thinks that, even though it might take a

little bit of time, they have the numbers on their side, which -- and they

had Bob Bauer, the lawyer who was actually the Trump stand-in for debate

prep, out there on a conference call this morning saying that they have won

the election, which is interesting, because, in the last few days, the

Biden campaign are the ones that were getting questions.

Hey, how are you guys going to react if Donald Trump prematurely declares

victory?

Well, now, before everything is in, before anybody got to 270, they are the

ones saying it's over -- Neil.

CAVUTO:  All right, Peter, thank you right now.

Now the former vice president of the United States, it looks like Kamala

Harris with him.

Let's go right now to Wilmington, Delaware.

(JOINED IN PROGRESS)

JOE BIDEN (D), PRESIDENTIAL CANDIDATE:  Kamala and I are here to make a

brief statement, and I'm sure we will have more to say later and either

tonight or tomorrow.

But let me begin by thanking the press for being here and thanking everyone

else.

My fellow Americans, yesterday once again proved democracy is the heartbeat

of this nation, just as it has been the heartbeat of this nation for two

centuries.

And even in the face of a pandemic, more Americans voted this election than

ever before in American history. Over 150 million people cast their votes.

I think that's just extraordinary. And if we had any doubts, we shouldn't

have any longer, about a government of, by and for the people.

It's very much alive, very much alive in America. Here, the people rule.

Power can't be taken or asserted. It flows from the people. And it's their

will that determines who will be the president of the United States, and

their will alone.

And now, after a long night of counting, it's clear that we're winning

enough states to reach 270 electoral votes needed to win the presidency.

I'm not here to declare that we have won, but I am here to report, when the

count is finished, we believe we will be the winners.

With all the votes counted, we have won Wisconsin by 20,000 votes,

virtually the same margin that President Trump won that state four years

ago. In Michigan, we lead by over 35,000 votes, and it's growing, a

substantially bigger margin than President Trump won Michigan in 2016.

Michigan will complete its vote soon, maybe as early as today. And I feel

very good about Pennsylvania. Virtually all of the remaining ballots to be

counted were cast by mail. And we have been winning 78 percent of the votes

by mail in Pennsylvania.

We have flipped Arizona and the 2nd District of Nebraska. Of special

significance to me is that we won with the majority of the American people.

And every indication is that that majority will grow. We have a popular

vote lead of nearly three million votes, and every indication is that will

grow as well.

Indeed, Senator Harris and I are on track to win more votes than any ticket

in the history of this country that ever won the presidency and vice

presidency, over 70 million votes.

I'm very proud of our campaign. Only three presidential campaigns in the

past have defeated an incumbent president. When it's finished, God willing,

we will be the fourth. This is major achievement. This is a major

achievement.

And it's been a long and difficult campaign. But it's been a more difficult

time for our country, a hard time. We have had hard campaigns before. We

have faced hard times before.

So, once this election is finalized and behind us, it will be time for us

to do what we have always done as Americans, to put the harsh rhetoric of

the campaign behind us, to lower the temperature, to see each other again,

to listen to one another, to hear each other again and respect and care for

one another, to unite, to heal, to come together as a nation.

I know this won't be easy. I'm not naive. Neither of us are. I know how

deep and hard the opposing views are in our country on so many things.

But I also know this as well. To make progress, we have to stop treating

our opponents as enemies. We are not enemies. What brings us together as

Americans is so much stronger than anything that can tear us apart.

So, let me be clear. I, we are campaigning as a Democrat, but I will govern

as an American president. The presidency itself is not a partisan

institution. It's the one office in this nation that represents everyone.

And it demands a duty of care for all Americans. And that is precisely what

I will do. I will work as hard for those who didn't vote for me as I will

for those who did vote for me.

Now every vote must be counted. No one is going to take our democracy away

from us, not now, not ever. America has come too far, America's fought too

many battles, America's endured too much to ever let that happen.

We, the people, will not be silenced. We, the people, will not be bullied.

We, the people, will not surrender.

My friends, I'm confident we will emerge victorious. But this will not be

my victory alone or our victory alone. It will be a victory for the

American people, for our democracy, for America. And there will be no blue

states and red states when we win, just the United States of America.

God bless you all, and may God protect our troops.

CAVUTO:  All right, not a victory statement on the part of Joe Biden yet,

confident with the numbers and that the trend is his friend, and leaving it

simply at that, with his running mate, Kamala Harris.

Please stay tuned the FOX News Channel and this FOX station. I'm Neil

Cavuto in New York.

So, in the back-and-forth of lawsuits and what could be a dragged-out

presidential election, the former vice president made it clear:  I'm not

here to file briefs. So, let me briefly tell you I'm here to get ready to

become the next president of the United States.

Right now, there is a battle, though, brewing over states that have already

been called and states where the count goes on.

Let's get into that right now with Lee Carter, GOP pollster. We have also

got Daron Shaw at the FOX News Decision Desk. They're the maestros behind

really reading on what's a time to call a state and what's not.

So, Daron, I end it with you. I want to begin with you.

The controversy today seems to be the Decision Desk's move to call Arizona

for Joe Biden. The Trump folks are firmly convinced -- and I talked to

former Wisconsin Governor Scott Walker, who's also firmly convinced --

that, when all is said and done, Arizona is and should be in the Trump

column.

How did you come to that Arizona decision, because that would change the

math if it rolled back, obviously, to Donald Trump?

DARON SHAW, FOX NEWS CONTRIBUTOR:  Sure. I mean, it's a fair question.

Our estimates about the outstanding vote in Arizona, I think, are right on

top of not only the Trump campaign's, but also most of the independent

analysis that we have seen, including The Arizona Republic and some other

political sources.

Where there's a difference is that the Trump campaign, possibly based on

information from their ground game operatives, believes that the late early

vote, votes cast on Election Day, et cetera, are going to break 60 percent

to 66 percent -- that is possibly 2-1 -- in favor of the president.

Our best estimates from the FOX Voter News Analysis suggests that the

distribution, most of which is going to come from Maricopa, is going to run

more along the lines of the traditional vote, which is about 55 percent

Biden, 44 percent for Trump.

We saw no indication in the data that people who cast their mail-in ballots

late in the game are going to be appreciably different than those who cast

their votes throughout this process.

In addition to the FOX News Voter Analysis system, we're also looking at

data from previous election cycles, including the most recent of which was

the 2018 Senate race, where you had McSally and Sinema. And as most people

remember, as the later ballots trickled in, Sinema continued to gain

ground.

Now, we don't -- we're not comparing a midterm election to the

presidential, but there was nothing that we saw the lead us to suggest --

to suggest or to base any analysis upon a 2-1 break for these late early

voters.

CAVUTO:  Lee Carter, looking at that, obviously, if those 11 electoral

votes from Arizona were to go back to Donald Trump, we'd be looking at him

having 225 electoral votes right now and Joe Biden 237.

So, you can understand why it's important to them and understand why

they're very, very interested in once again canvassing votes in some of

these battleground states, Wisconsin, Michigan as well. They're close

enough for that.

That's very tough to do, though. Rarely do they lead to a turnaround in the

vote. Your thoughts?

LEE CARTER, REPUBLICAN POLLSTER:  It's really tough to do.

I mean, these races, while you look at Nevada, that's a really close race.

You're looking at 7,000 votes there. When you look at some of these other

votes, you're looking at 35,000, 79,000, 76,000 votes. Those are, I mean,

not huge spreads, but that's enough.

It's bigger than the margins that Donald Trump won by in 2016. And so, when

you look at this, you look at the numbers and you look at the math, as was

just described to us, it seems like the path for Donald Trump to go to

victory is narrower and narrower and narrower.

It's really, really almost impossible, I think, at this point, without

something being overturned. And I think that's why you're seeing so many

legal battles being coming -- being threatened and started, because I think

the only way to victory at this point, realistically, is through something

that's going to come down from that.

CAVUTO:  You know, Daron, when you look at these numbers, and what we're

left with, we always talk about who has the least number of obstacles to

get to 270 or the clearer paths.

And, right now, it would seem to be for the former vice president. If he

were to pick up Michigan's 16 electoral votes -- and he's leading there

right now -- and Nevada's six, he's there. Pennsylvania becomes a moot

point. All of this drama over some of these other states becomes a moot

point.

Are you comfortable -- and I have asked this of others as well -- making a

call on either one of those states either tonight or tomorrow?

SHAW:  Well, I'm not comfortable now. I can't remember the last time I was

comfortable about an American election.

I think there's there's some sense that Michigan might dump another tranche

of data, which might give us some clarity there. I think there's a general

expectation around the Decision Desk that we may know Michigan by later on

this evening.

Nevada, I don't think so. Nevada has let us know that they're not planning

on releasing the data, which is essentially going to be processed Election

Day mail-in votes -- so it's people who basically voted on Election Day by

mail -- their argument in Nevada is that they need a day to do the

signature check matches, to make sure that people didn't double-vote,

showed up in person, and then voted by mail.

So, we will cut them some slack, but they're not planning on releasing

those data until tomorrow. So, I don't know that we're going to get

clarity.

I do think we could hear from North Carolina, where they have sort of

stopped processing ballots, and Trump has a fairly significant lead there.

Georgia is going to give us another tranche of data, which may give us some

clarity there. Our models show Georgia trending towards a very, very close

race.

And so I think, as we add data there, coming from Atlanta and some of this

collar counties, I don't know that we're going to get more clarity. I think

we might get less clarity.

But you're right. President Trump's path is very narrow at this point. But

there is a path, I think it's important to keep that in mind.

CAVUTO:  Lee, is your thought that the sentiment around legal battles,

looking at who voted and when, dragging this out, so to speak, helps or

hurts the president?

CARTER:  You know, well, that's going to be decided when the legal battles

are done, right?

I think it was probably too soon for him to start making such an

announcement, as he did last night, because there is still a path. It is a

very narrow path. And last night, at 2:30 in the morning, there was very

much still a path.

And so what he should have done and maybe could have done instead, simply: 

I'm optimistic. I can see the path. I want every vote counted. And we are

going to fight to make sure every one of you is heard until the very end.

And that would be a very different feeling than we have today, where

there's accusations of voter fraud, where there's accusations and the legal

documents are already being filed. You would feel differently about it than

the way it was -- than it was announced.

And so will this work in the end? Maybe. Maybe he will end up being the

president again. And that would be -- that would be one thing.

But the question is, how are the American people going to feel about it?

Are they going to question how he came to power again? Are they going to

question the legitimacy of the election, that their votes are going to be

counted? There's going to be a lot of pain and a lot of things and a lot of

healing that is going to need to happen as a result of it.

So it might have been the -- it might lead to victory, but I think that

there are some costs along the way.

CAVUTO:  All right, we shall see.

Lee Carter, final word. Daron Shaw, great catching up with you, my friend.

Thanks, guys, very, very much.

In the middle of this, you might say, all right, if we're in the middle of

this crisis, or whatever you want to call it, where we might not be able to

settle the presidential election for days -- some are talking weeks or

months to come -- I don't know if that's justified.

How is it that stocks posted their third triple-digit advance in as many

days?

Frances Newton Stacy is here of Optimal Capital, the director of strategy.

Frances, what's going on with Wall Street? What does it see that maybe we

don't?

FRANCES NEWTON STACY, OPTIMAL CAPITAL:  Right.

So we unwound the blue wave trade with the high probability that we're

going to keep the Republican Senate. And now I think the market is just

pricing in a Biden presidency and a Republican Senate. And markets like

that. Markets like the certainty.

I think that markets will continue to go to the -- through this channel and

expect fiscal stimulus, if it turns out that Biden wins the presidency. If

Trump pulls it out, via litigation or the votes that come through, I think

we will see more rallying in the market.

But the next thing that the markets are focused on is fiscal stimulus. And

what's nice is, I'm hoping that the political posturing on that point is

going to be behind us, Neil.

CAVUTO:  You know, when I look at some of the numbers and the various

scenarios -- forget about the electoral votes in some of these states --

the markets, I get the split government thing. They're looking at the

prospect of a President Biden.

We're nowhere near that right now. Just I get the fact that he's countered

or some of his big economic plans, spending plans, tax plans maybe, are

countered by a still Republican Senate.

But, at the very least, in that logjam, it's still possible that some of

the president's tax cuts still go, and we have seen with Republican Senates

in the past brokering deals with a Democratic president that brought us

just that. So who's to say that the split government goes the market's way?

NEWTON STACY:  Well, you're exactly right.

But the markets essentially -- and it's kind of funny in this COVID era,

how the new cycles are affecting the markets or the tweets or what have

you. The markets don't have to worry about that until the first quarter of

next year.

And we will be expected to have more economic data. We will be expected to

have fiscal stimulus. And so I do think, at some point, obviously, Biden

will be able to do some things with taxes, some things with regulations,

despite the Republican Senate.

But it's not going to be as extreme as the blue wave. And so a lot of it's

just that the markets so much priced in the blue wave that they're now

unwinding that, although I would contend...

(CROSSTALK)

NEWTON STACY:  ... not everybody sold their stocks thinking that -- until

the Senate race was sure, but some people did, for sure.

CAVUTO:  Yes, they always do. We will see what happens.

Frances, thank you very much, Frances Newton Stacy here.

And we will see, the tick-by-tick movement in markets, whether they follow

this, we're going to conclude this, we're going to get some clarity on

this, vs. days when it doesn't look like we are.

In the meantime, those other states that are still unaccounted for and

still not called, Pennsylvania the biggest among them for the time being,

Bryan Llenas right now in Wilkes-Barre, Pennsylvania, with a counting

process that is, to put it mildly, pressure city.

Bryan, what can you tell us?

BRYAN LLENAS, FOX NEWS CORRESPONDENT:  Neil, yes, good afternoon.

We are in Luzerne County. This is a county that is a county that President

Trump is going to win. Look, if you look at what former Vice President Joe

Biden said about being confident about Pennsylvania, you can understand why

when you look at the numbers.

The bottom line is, he needs about -- he is winning 73 or 74 percent of the

mail-in ballot vote. And there are about 850,000 mail-in ballot votes that

still need to be counted. Here in Luzerne County, they have 50 city

employees here who are have been counting 57,000 mail-in ballots since

yesterday at 7:00 a.m.

They stopped at 10:00 p.m., woke up again at 8:00 a.m. today, and have

continued to count. They have about less than 10,000 ballots left. And

these are city employees who are here during COVID, wearing their masks,

working in a small courtroom.

And there are observers here, a Republican lawyer, a Democrat lawyer, the

press, elected officials, who can see this process as it goes.

And, look, it is a process. These folks have to open up two envelopes just

to get to the ballot. Then, after that, they have to then scan that ballot.

So, it takes a team.

And the bottom line is, when you speak to the county manager here, he will

tell you, look, if the legislature and the governor had just come to an

agreement, and given these counties at least one day, three days, a week,

just any kind of time before Election Day, allowed them to actually start

counting these ballots, Pennsylvania's results would already be in.

But they could not come to a consensus. The Republican-led legislature

could not come to a consensus on giving some sort of time to allow that

pre-canvassing. And that is why the entire nation is waiting for the

results.

And it is a laborious process, and these people are risking it. You know,

so, this is democracy at work. And it's really something to really see them

continuing to count these ballots, working hard.

And this is the scene at counties all over Pennsylvania, as that mail-in

ballot, by the way, those votes are mean a lot to the former Vice President

Joe Biden. Again, about 1.6 million mail-in ballots have been counted, the

former vice president winning about 74 percent of the mail-in ballots in

this state.

And there are still about 850,000 ballots left to count. President Trump's

margin right now, he's up about 400,000. And there's not a lot of votes out

there in Pennsylvania for the president to be left to count in. So, this is

why the Democrats feel very confident about Pennsylvania right now.

And it's all because of those collar counties in and around Philadelphia,

those mail-in ballots. The margins are pretty big for the vice president.

CAVUTO:  Bryan Llenas, thank you very, very much, my friend. That was

fascinating to see what's going on there and maybe some of the monitoring

that's going of the people who are counting those votes.

I want to go to Tom Dupree right now, the former Deputy Assistant Attorney

General John Yoo with us as well, U.C. Berkeley law professor.

John, if I can begin with you on the president's quest to sort of slow,

stop this, get the Supreme Court to deal with this. How likely is that?

JOHN YOO, FORMER DEPUTY ASSISTANT ATTORNEY GENERAL:  I think there's a good

chance.

And the reason I say that is because there's a case still pending out of

Pennsylvania with the U.S. Supreme Court right now that raises the

fundamental question:  Can the Pennsylvania state legislature set the

deadlines for when votes are due and how they're to be counted, or can

courts say they're justifying the right to vote and extend the deadline?

Four justices on the Supreme Court have wanted to intervene even before

Election Day. And the Supreme Court decided to say, no, let's wait and see

what happens. Well, now we can see what happens. And it may be the case

that the Supreme Court might take that case right now.

The other thing is, Amy Coney Barrett was not on the Supreme Court when the

earlier decisions were made. So, she's going to now join the court. And now

the Supreme Court will have to face the question, do we want to take a case

out of Pennsylvania that deals with these three extra days that state

courts added on after Election Day for votes to come in?

CAVUTO:  You know, looking at this process, Tom Dupree, I would imagine --

I will defer to both of you guys -- you are the experts and the top-notch

lawyers.

But if I'm the Supreme Court, the last thing I want to do is involve myself

in something like this. And I'm just wondering whether this is the type of

issue that goes into lower courts in the various states, maybe, as it did

in 2000, 20 years ago, eventually hitting the Supreme Court in Florida,

before it made its way to the federal courts and then to the Supreme Court,

but it's not going to be the first default stop.

I mean, what is your sense of, legally, how this would travel?

TOM DUPREE, FORMER JUSTICE DEPARTMENT OFFICIAL:  Yes, Neil, my sense on

this is that I could see the Supreme Court getting involved if, but only

if, they knew that their decision would be consequential.

And by that, I mean potentially flip the election, because, look, you're

right, if, at the end of the day, what the Trump campaign is arguing about

is 2,000 ballots, and they have got to overcome a margin of 20,000 votes,

then it seems unlikely, to your point, that the Supreme Court would say, we

want to wade into these political waters.

I suspect we're going to get greater clarity in the next 24 to 48 hours as

to how important those ballots that have come in, in the three days since

the polls have closed are important or whether or not they could make the

difference in Pennsylvania, and potentially make the difference in the

election as a whole.

CAVUTO:  John does a court pick up the criticism that the president might

be getting from fellow Republicans?

By that I mean, Chris Christie, who spoke out against this to say that all

of these votes have to be counted. "Tonight," referring to the president's

actions last night, "is not the time to make this argument."

Marco Rubio of Florida pushing back on the president's premature

declaration of a victory, saying, "The rest" -- and I quote here -- "of the

presidential race will be known after every legally cast vote has been

counted."

So, does a court weigh concern on the part of fellow Republicans who fear

the president, maybe with all the right intentions and purposes, is

overdoing it, is overstepping it?

YOO:  That's a great question, Neil.

And you and I, I think we're old enough. We were around back 20 years ago

for Florida 2000. And part of what happened there, I think it would be a

good idea for Trump to emulate here, which is let the vote count come to a

close for, as you said, every legally valid vote under the rules set by the

state legislature, and then go to court, if there's an effort to monkey

around with how the votes are counted, where they came from, whether it was

an extension of the deadline.

That's important to give people some kind of confidence that you are going

to come to a final vote. And I think that's what happened 20 years ago. I

think that's what the Bush campaign did. And then, only then, did they ask

the Supreme Court to get involved, when it looked like other actors were

going to try to come in and upset that final vote count.

CAVUTO:  You know, Tom, again, I don't know when they go back and piece

together an evening.

We were covering this on FOX Business last night, which, Tom, if you don't

get, you should demand, but I digress.

(LAUGHTER)

CAVUTO:  One of the things that came up was a consensus building around the

notion some of the earlier ballots are going to take a long time to count,

they're going to be disproportionately in favor of Joe Biden, might be more

Democratic ballots, so they're going to be rough ones to count.

Some states were going to delay counting them on the day of voting. Other

states, like Pennsylvania, to a lesser degree, North Carolina, were going

to put that next in line. So, it's not as if we didn't have an expectation

that day-of voting would favor the president, and then the rollout of these

ballots that could change things, as they did in Wisconsin.

Once again, on the court, how much does it consider the timeline here and

what people had seen as a consensus vs. now what looks like a frantic

political legal pitch?

DUPREE:  Yes, look, Neil, I mean, the justices on the Supreme Court, just

like the rest of us, they watch television. I don't know if they watch FOX

Business, but they should. They read the newspapers. They follow what's

going on.

So they're not immune from all the discussion that's going on. But I do

think, when push comes to shove, and they have to make this immensely

consequential decision about whether or not they're going to jettison

ballots that potentially could shift the winner of the election from Biden

to Trump, I think, at that point, they're going to tune out a lot of the

chatter, a lot of the expectations, and they are going to make the call,

based on what the Constitution of the United States requires.

CAVUTO:  John, looking at this and the planned comments, where the -- I

guess the Trump campaign team is going to outline its legal agenda here and

how it's going to challenge this, I don't know in how many states, maybe

all that are as yet unaccounted for, maybe including Wisconsin.

Of course, it chafed at the idea that that state was rewarded to Joe Biden.

What can we expect from their strategy? I know I'm catching you. We don't

know. But what would their legal argument be right now? Count the votes

that you have? Do not count new or ballots that came in later? How are they

going to parse that?

YOO:  Well, first, I think you're going to see them go into federal

district courts, rather than trying to stick in state courts.

And if I were them, I wouldn't make it an argument about stop counting

votes. As you just mentioned, Neil, as Chris Christie mentioned, Marco

Rubio, that sounds terrible.

Instead, what you want to do is defend the right of the state legislature

to set the rules. The U.S. Constitution gives to the legislatures of a

state -- in fact, the Constitution rarely picks out one body like, says the

state legislature selects the presidential electors, and they set the time,

place and manner for elections.

So, what they should do is say, we are only defending the constitutional

rule that state legislatures, not state courts, not governors, are the ones

who decide how the election should be conducted.

And in those states that you mentioned, Neil, those are ones where the

state legislature set a date and decided how to count a legal vote. And

then other actors in the state are trying to intervene and change those

rules.

CAVUTO:  It sounds to me, Tom, like an uphill climb.

DUPREE:  No. Yes, I think it is an uphill climb.

I think the challenge for the Trump campaign is, if they're facing, for

example, a deficit of, say, 10,000 votes, even if they have the strongest

legal argument in the world, if all it's going to net them is, say, 1,000

votes, well, then they're going to have to file a bunch of lawsuits, and

they're going to have to run the table on all of those lawsuits.

I mean, these sorts of post-election litigation challenges, it's the legal

equivalent of trench warfare. You're scrambling by ballot by ballot, vote

by vote, trying to piece together enough votes for your guy or knock out

enough votes of the other guy to change the outcome. It's hard work. It's

challenging work. There's a road to victory for the Trump campaign.

But let's not have any illusions. It's a tough one.

CAVUTO:  Got it.

Tom Dupree, final word.

John Yoo, great catching up with you as well. Thank you, guys, very, very

much. We will see how this goes.

Taking a look right now at this presser. Is it starting, guys? It looks

like it is.

All right, let's dip into this and see what they have to say. I don't know

who is speaking there, just some of the top campaign officials.

(JOINED IN PROGRESS)

ERIC TRUMP, EXECUTIVE VICE PRESIDENT, TRUMP ORGANIZATION:  We came to

Pennsylvania today with -- to meet with our legal teams.

It's very clear to us, and we have declared victory in Pennsylvania. We're

up by 400,000 votes with 86 percent of the precincts in, 86 percent. And we

have Republican votes still coming in from Trump country.

And the Democrats know that the only way that they can win this election is

to cheat in Pennsylvania. And we have seen it from day one. We have seen it

from day one. We found ballots and drainage ditches. They're not letting

our poll watchers watch the polls. They're not letting them inside.

There is video after video of them passing out collateral material in

polling sites all over Philadelphia. They're trying to cheat. They're

trying to cheat. They have three-by-five printed big posters in polling

locations all over the city, saying to vote for Biden and Harris, which is

totally illegal.

They're passing out flyers. The supervisors of elections, we have them on

video, certain ones, wearing literally Biden/Harris face masks in polling

locations, which is totally illegal.

And now they won't let -- and we brought one great gentleman here with us

today, Jeremy, who's a poll watcher down at the convention center. They

won't even let him watch as they count the ballots. They put them behind a

fence 40, 50 yards away, where they actually can't see the counting

happening.

Guys, this is fraud. This is absolute fraud. We've seen it in Philadelphia

before. They're trying to make a mockery of the election of this country.

My father is up by almost half-a-million votes in this state, with 86

percent reported, and plenty of red counties left to go, plenty of red

counties left to go. We're going to win Pennsylvania. But they're trying to

cheat us out of it, because they know it's their only path to victory. They

know it's the only path to victory.

And so we came here today. We met with all our lawyers. We are going to

file suit in Pennsylvania. It's a shame that we have to do that. It's the

last thing that we wanted to do. It's the last thing my father wanted to

do, but this is rampant corruption. And it can't happen. It's simply can't

happen.

It's not fair. This isn't democracy.

And with that, I want to pass it off to the great Rudy Giuliani, who's

really leading the legal effort. And you'll be hearing from Rudy quite a

bit.

Please.

(CHEERING AND APPLAUSE)

RUDY GIULIANI, ATTORNEY FOR PRESIDENT DONALD TRUMP:  Thank you very much,

Eric.

It is very, very sad that we're here in the city that's really the

birthplace of our democracy. And this is among one of the most anti-

democratic things I've ever seen or encountered. And it's not just here in

Philadelphia. This is going on all over the country.

We have filed a lawsuit. The lawsuit actually required that, when these

mail-in ballots that you know are highly suspicious anyway -- this form of

balloting has always been considered the most prone to fraud.

That's according to The New York Times when it didn't apply to candidate,

President Trump. Well, we were supposed to be allowed by law to observe the

counting of the ballots. Now, observe means to any intelligent person being

able to look at it.

The way it's interpreted by the Democrat, crooked machine of Philadelphia,

is that the observers can be 20 or 30 feet away, never able to see the

ballot itself, never able to see if it was properly postmarked, properly

addressed, properly signed on the outside, all of the things that often

lead to disqualification of ballots, or make it very easy to dump 50,000

totally fraudulent ballots, because they're not observed.

This went on for 20 hours. While all of you thought there was some kind of

legitimate count going on here in Philadelphia, it was totally

illegitimate.

So, we went back to court, and we went before a Democrat judge. No need to

tell you what the result in Philadelphia is if you are before a Democrat

judge, obviously a political hack, who doesn't know the meaning of the word

observe.

Observe needs to be able to look. Not a single Republican has been able to

look at any one of these mail ballots. They could be from Mars, as far as

we're concerned, or they could be from the Democratic National Committee.

Joe Biden could have voted 50 times, as far as we know, or 5,000 times.

The ballots could be from Camden. Philadelphia, unfortunately -- and we say

this about my own city -- has a reputation for voter fraud. You have a

reputation for dead people voting, and we're going to go look at just how

many dead people voted here. I didn't think we'd have to do that. But we

will.

And you have a reputation for people being bused in from Camden voting

here. Wouldn't be the first time that happened.

But this goes way beyond any of that. And let me also add that this isn't

happening just here. We have exactly the same lawsuit in Wisconsin, where

exactly the same thing happened, except in Wisconsin, mysteriously, at 4:00

or 3:00 in the morning, about 120,000 ballots appeared. Oh, here comes

these ballots.

Well, we have no idea if they really are ballots. We have no idea if

they're signed, if they're postmarked properly, if it isn't just the same

person who submitted 100,000 ballots. And they all got counted. This is the

way they intend to win.

Now I'm informed by former Congressman Sweeney, who has been...

CAVUTO:  We're considering to monitor Rudy Giuliani.

You might have noticed something happened to the electoral vote count for

Joe Biden. Our Decision Desk has taken a look at Michigan and concluded Joe

Biden has won Michigan and gets the 16 electoral votes from Michigan.

That puts him now six electoral votes from the presidency of the United

States. Nevada could do it. Those electoral votes are still out there.

Would you know there's six electoral votes there? If he were to take that

state, he would be at 270, and he would be on his way to the White House.

Now back to the legal challenges being mounted as we speak by team Trump.

GIULIANI:  You make sure that it's properly postmarked. You make sure that

it's properly addressed, and then you pass on it.

A number of these are often challenged by the Democrat representative or

the Republican representative. We never got a chance to look at a single

one of them.

The gentlemen here who did this for us says about 100,000 ballots went

through that process in the 20-plus hours in which they wasted his time by

not allowing him to see a single ballot. Well, that's 120,000 ballots that

should just be taken out of the count.

So, you want to look at that number, that 120,000 should come out. And this

is an area in which Biden is getting 60, 70 percent of the vote. I don't

know if this is going on in any other place, but it is going on with enough

frequency in Wisconsin that we have brought suit, and now we will have to

look into three other places.

What it says to me is, this is a concerted effort of the crooks that run

the Democrat Party. And, you know, these big city machines are crooked. You

know that -- 20 years, 30 years, 40 years, 50 years, 100 years of one-party

rule leads to corruption of all kinds.

Voter fraud is one of the biggest, because that's how you keep your power.

But we're not going to let them get away with it. They're not going to

steal this election. This election is decided by the people. These people,

the elite, they don't care about the people. The people are the

deplorables, the chumps. They're not important.

To President Trump, he's the whole reason that he ran for office. And he's

the whole reason for which he's carrying on this campaign, so that your

vote can mean something, so that your vote doesn't get wiped out by 100,000

fraudulent meaningless paper ballots that no one gets to observe.

So, we are going to continue the lawsuit here. We're going to bring a

second one. And then we're going to bring a federal lawsuit. And we're

going to take a very good look at whether we bring this nationally. We

certainly are going to bring it here and in Wisconsin.

Quite possibly, we will do a national lawsuit and really expose the

corruption of the Democrat Party.

But this is beyond anything I have ever seen before. This comes when you

think you have so much power and you own the media, that you can do

anything you want.

Well, sorry, we're going to fight for the people. We're going to vindicate

their right. And the ultimate result is, President Trump has won

Pennsylvania. I have never heard of a count where you're ahead by 400,000

with 80-plus percent counted, and they haven't called it for you yet.

They called California the moment it opened -- the polls closed. How many

votes do you have to be ahead to win? For a Republican to win here, how

many votes do we have be ahead? Four hundred thousand is not enough with

80-plus percent counted?

I think there's only 14 percent of the vote to go. Do you think we're

stupid? You think we're fools? You know something? The Democrats do think

you're stupid and they do think you're fools. And that's why you get called

deplorable and chumps.

It's over.

CAVUTO:  All right, Rudy Giuliani wrapping things up here.

I want to bring your attention again to some startling numbers you're

seeing on your screen here. What happened to Joe Biden's electoral vote

count? Why is he at 264?

Because our Decision Desk and others have awarded the state of Michigan,

close as it was, separated by 20,000 votes, though they are, to Joe Biden.

That brings him now up to 264 electoral votes, within six of 270.

And that, you can find, for example, in the state of Nevada, where he

leads. There are six electoral votes there. If, if, if he were to win that,

and they were to decide that, he would be at 270, and he would well be on

his way to becoming the next president of the United States.

Conversely, for the president now, that means he would not only need those

Nevada electoral votes, the six there, but the 15 out of North Carolina,

the 16 out of Georgia, and the 20 out of Pennsylvania. He would, as they

say, have to run the table, and then he could indeed get there.

It is a leap. The math favors right now Joe Biden. He is within six

electoral votes of getting there. He's not there yet. But he's certainly

much closer.

Stay tuned now to FOX News Channel and this FOX station.

I'm Neil Cavuto in New York.

All right, now back to this legal challenge being raised by the Trump team

here about the imposition of these restraints that say -- they say, and

very, very suspect voter developments in key states, including

Pennsylvania.

Pam Bondi, the former Florida attorney general, is speaking right now.

PAM BONDI (R), FORMER FLORIDA ATTORNEY GENERAL:  ... brought out a pair of

binoculars. They were shut down on the binoculars, but then they were told,

well, OK, you can use the binoculars.

So, that's a concession that we are allowed to observe the ballots. Yet,

clearly, when you see how big the room is, you cannot see every ballot. You

can only see, with the binoculars, the ones that are closest to you.

So, that's a concession by them, and they're still not letting us see this.

So we need to fix this. We need to remedy this now, because we have won

Pennsylvania, and we want every vote to be counted in a fair way.

Thank you. And I'd like to introduce Corey Lewandowski.

(CHEERING AND APPLAUSE)

COREY LEWANDOWSKI, TRUMP 2020 CAMPAIGN SENIOR ADVISER:  General Bondi and I

will be here for the remainder, until you all realize that President Trump

has won this state.

We have now officially declared the state of Pennsylvania Trump country.

Until the last vote is counted, General Bondi and I will be here. I'm sure

we will be in constant communication with you. We will be releasing that

video shortly, and we appreciate your time.

There'll be no questions today. Thank you very much.

GIULIANI:  Jeremy?

This is a gentlemen, I will have him introduce himself. This is a gentleman

who volunteered two days of his time in order to do a civic duty, and was

obstructed in a horrible way by the crooked Democrat machine of

Philadelphia, which really has been around so long, it's a shame.

JEREMY MERCER, POLL WATCHER:  Hi, thank you, Mayor.

Jeremy Mercer. and I was at the polls -- or at the pre-canvass yesterday

from 7:00 a.m. until just after midnight, back again this morning just

before 8:00 a.m. until around 2:30.

And has been described very well, we're there supposedly observing, but we

can't see. We're further away than I am from you all here, hundreds at

least a hundred feet away from open ballots that go back out of our sight.

We can't see them. We don't know what's happening to them. It's just --

there's no way for us to meaningfully observe the process from where they

have us.

GIULIANI:  Could you tell us how many ballots approximately went through

that process that you had no chance to observe?

MERCER:  Based on the counts that we have heard, it's about 125,000, maybe

more.

GIULIANI:  Well, so that should be deducted from the count. Those are

ballots that were counted in violation of the law, without an observation.

And since this is a novel procedure, this mail-in thing, observation is

particularly important to satisfy the possibility that you can defraud.

This isn't as if you come in and show an identification. So, that's what

we're going to be seeking here and in Wisconsin and quite possibly

nationally, if there's as much evidence in Arizona and Nevada and Michigan.

QUESTION:  (OFF-MIKE)

UNIDENTIFIED MALE:  There's no questions for now. Thank you, guys.

UNIDENTIFIED MALE:  Thank you very much, guys. Really appreciate it. Thank

you.

(CHEERING AND APPLAUSE)

CAVUTO:  All right, this is really -- the Trump campaign really targeting

what's going on right now in Pennsylvania.

That state, it could be days before we know for sure who won the 20

electoral votes there. The president did last go-round. He has a

substantial lead right now, better than 400,000 votes, as I think Eric

Trump was pointing out.

But Democrats counter, yes, but a lot of the ballots from urban centers,

big cities, Philadelphia, for example, have not come in, and they will more

than offset that. Now, that's what a lot of the Democrats say.

Others say that it's prohibitive math and closer to actually half-a-million

votes that Democrats would have to find a way of making up.

So, what they're essentially saying, this is where it stops right now, we

have won Pennsylvania, let's move on.

What happened in the interim, though, is that even if that was to be

settled in their favor, because major news organizations, including our

own, have declared both Wisconsin and Michigan are now in the Joe Biden

column, it is incumbent upon the president to sweep the remaining four

states we do not know, including Nevada, with six electoral votes.

If, for example, Joe Biden were to get that, with the 264 he has now, he is

at 270, and he is the president-elect of the United States. For the

president, he would not only have to get Nevada. He would have to get North

Carolina and its 15 electoral votes, Georgia and its 16 electoral votes,

and, as I said, the aforementioned Pennsylvania and its 20 electoral votes.

He would essentially have to run, that is, the president, the table with

the remaining states on the map. So, the numbers are looking prohibitive

right now.

Let's go to Francesca Chambers, McClatchy White House correspondent.

Francesca, first on those developments, with Michigan being declared in the

Joe Biden column, along with Wisconsin. Both happened within about an hour-

and-a-half of each other. For all we know, Nevada could be next, but, that,

we don't know.

But the math is beginning to look a little prohibitive.

FRANCESCA CHAMBERS, MCCLATCHY D.C.:  And now we hear Rudy Giuliani saying

that they could quite possibly pursue a national legal challenge.

It's not really clear yet what he means by that, but it seems to echo what

President Trump was saying in the wee hours of the morning the last time

that we saw him before cameras.

And, Neil, I was speaking to a source that's been in touch with the

campaign about their legal strategy, who essentially summed it up as saying

they plan to litigate everything everywhere, everywhere being places where

it's contested.

And Republicans feel that, even if the president, at this point, cannot

win, that this is something that he must do. This is really his last

potential pathway here, is to push these litigation challenges.

CAVUTO:  Is it your sense that this is just delaying the inevitable? I

mean, what do you hear, talking to insiders? Do they have a legal shot at

this?

CHAMBERS:  It's been -- it's -- today, Neil, it's been -- it's been a

little mixed, because when the president came out and said that, it was not

immediately clear what he meant by, we're going to the Supreme Court, where

he meant that they were going to do that, which states.

It now seems to be a little bit more clear, based on the update that we

just heard, certainly in Pennsylvania. But, again, Michigan, Wisconsin are

also places where they expect to have challenges.

But Pennsylvania is where they had already been before the Supreme Court

and are waiting to see whether the Supreme Court would accept another case.

CAVUTO:  All right, Francesca Chambers, thank you very much.

And get the read on this from the Republican Ohio governor, Mike DeWine.

Governor, good to see you again.

GOV. MIKE DEWINE (R-OH):  Good to see you, Neil. Thank you.

CAVUTO:  What do you think about this? What do you think -- thank you, sir.

What do you think of this legal challenge?

DEWINE:  Well, I'm just hearing it, just as you are, so I don't really

know.

Look, let me just say that we do a good job in this country in doing

elections. We count the votes. There's always -- every campaign that I have

ever been involved in or seen, Democrat or Republican, I have seen the

Democrats, been involved in Republicans for president, there's always

lawyers in each state in case there's something that needs to be done.

The filing of lawsuits, you know, look, we believe in the rule of law. And

this thing is going to get worked out. This thing will be decided. And we

will, at some point, know who the next president is. And those who lost, we

will accept that.

And if it was -- I'm -- I was Trump. I am for Trump. And if it ends up

being Biden, all of us will -- will accept that, because that's what we do

in this country.

CAVUTO:  Chris Christie, Marco Rubio, two prominent Republican critics of

this move on the part of the president, they argue, in various themes, you

have to count every vote, and they don't like the way this looks.

DEWINE:  Well, first of all, every vote has to be counted.

And I don't think there's any dispute about that. So, I totally agree with

them. Every vote has to be counted.

As far as the merits of what I just heard, I really don't know. I don't

know what's going on in Philadelphia. But, again, the courts are open.

People have a right -- Democrats, Biden, Donald Trump, and the Republicans

have the right to go into court, if they think that there's something wrong

with how the counting is going on.

CAVUTO:  But they would have to prove that illegality, right, Governor?

DEWINE:  Oh, absolutely.

CAVUTO:  They would have to prove that.

And I know one of the things...

DEWINE:  Well, look -- look, it's fact-driven.

(LAUGHTER)

CAVUTO:  One of the things Marco Rubio had mentioned...

DEWINE:  Yes.

CAVUTO:  ... sir, is that: "There must be proof that ever legal cast vote

has been counted."

Chris Christie, referring to these developments last night: "All these

votes have to be counted. This is not the time to make this argument."

They seem to be saying that this isn't as black and white as counting

votes, but trying, or at least the risk of making it look like you're

trying not to count some votes.

What do you think?

DEWINE:  Well, we all have to be for counting all the votes. We all should

be for doing it the right way. And I guess that's where we get a dispute

going on here.

But, look, we're going to get through this. We're going to count the --

votes are going to get counted.

I'm happy that I'm not Pennsylvania. In Ohio, we counted them pretty quick.

And, of course, the president had a big, big, big margin as well. And I

think everyone in Ohio did a great job counting them.

So, I'm not an expert on Pennsylvania law, nor on what's going on in

Philadelphia. But we, as a country, accept election results. We believe in

counting all the votes.

CAVUTO:  So, if the campaign sir, went to the extent of saying, forget

Pennsylvania, we're going to go national with this, is that a step too far

for you?

DEWINE:  Yes, I don't know what that means. I mean, I just don't know.

I mean, normally -- look, Neil, everything is fact-specific. I'm a lawyer.

I have been a prosecutor. Everything is based on facts. What are the facts?

I mean, is there -- are there facts that show something is going wrong here

and that the law is being violated?

You have the right to go into court. Anybody does...

CAVUTO:  All right.

DEWINE:  ... to try to prove that.

But then the judge has got to make a determination, based upon your

presentation of the facts.

CAVUTO:  Got it.

Governor Mike DeWine, thank you very much for these breaking news

developments, the Ohio governor right now weighing in on this.

So, we don't know where all of this will go. We do know that, in the

background here, along the way, Joe Biden has gotten within six electoral

votes of replacing Donald Trump.

Here comes "THE FIVE."

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