When does Supreme Court step in to settle presidential elections?

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When does Supreme Court step in to settle presidential elections?

Election law attorney Brian Silber weighs in on the Trump campaign's legal challenges on 'Your World'

Nov. 5, 2020 – This is a rush transcript from “Your World with Neil Cavuto” November 5, 2020. This copy may not be in its final form and may be updated.

(BEGIN VIDEO CLIP)

UNIDENTIFIED PROTESTERS: Count every vote! Count every vote!

UNIDENTIFIED PROTESTERS: Every legal vote count! Every legal vote count!

(END VIDEO CLIP)

NEIL CAVUTO, FOX NEWS ANCHOR: All right, the protests continue on both sides of the aisle and all across this country, and through all of this, while it might be deemed by some to be a sign the country is falling apart, at the corner of Wall and Broad, buying and buying.

Never mind we still are not closer to some sort of conclusion on this presidential race. Buyers were racing to set yet another triple-digit advance on the Dow Jones industrials. In case you're counting, that's four in a row such advances this week on what is already likely to be not only an historic week for politics, but an historic week for stocks.

Welcome, everybody. I'm Neil Cavuto. And this is "Your World."

And so much is going to be happening in the next hour. I don't know how we're going to fit it all in, but we have the hour. We are going to be going very, very shortly right now to Arizona, where Trump officials are going to outline their game plan to make sure that Arizona is in the Trump column when all is said and done.

As you know, here at this network and among the Associated Press, the state has been called for Joe Biden. The Trump administration has been arguing, as has the Trump campaign, that you better slow down on that because we think the numbers are indicating otherwise. That is probably what they will detail in the minutes ahead.

First to John Roberts on how all of this is shaking out at the White House.

Hey, John.

JOHN ROBERTS, FOX NEWS CHIEF WHITE HOUSE CORRESPONDENT: Hey, good afternoon to you, Neil.

I know exactly what they're going to say, because I just talked to one of the people who will be there giving that press conference. They're going to say that the president has got the votes to win it. And here's the reason why.

They say there are still 417,000 ballots yet to count. The current split in the vote is 68,000. The president gained about 11,000 on Joe Biden yesterday. They're expecting another dump of vote counts tonight. They believe that we will put the split about in the mid-40s, and there will be still to 325,000 ballots to go.

The president needed to get just over 57 percent of those remaining ballots. And according to sources that I have talked to, he is outperforming that.

Now, will that hold up? It's anybody's guess. But, so far, the numbers have been moving in the right direction.

The president tweeting earlier today -- or not tweeting -- sorry. This was a campaign statement, because Twitter has been censoring a lot of his tweets. So he played it safe got this out through the campaign.

"If you count the legal votes, I easily win the election. If you count the illegal, illegal and late votes, they can steal the election from us."

A lot of this is about election monitoring. The Trump campaign wanted to hit people inside rooms like the one that you're seeing on your screen there to ensure that only legal ballots are being cast.

Earlier today, in Philadelphia, a judge ordered that those monitors be allowed to go within six feet of those tables, so that they can watch closely what people are doing. But when the Trump election monitors went in, those tables had been moved.

Listen to what Pam Bondi and Corey Lewandowski said about that.

(BEGIN VIDEO CLIP)

PAM BONDI (R), FORMER FLORIDA ATTORNEY GENERAL: We cannot count the votes properly. What's happening is they have moved the barrier up to six feet.

But they took away the ballot machine.

Your legal votes must be tabulated. And they're not doing that.

COREY LEWANDOWSKI, TRUMP 2020 CAMPAIGN SENIOR ADVISER: The sheriff of your county will not come down and enforce a court order. What is going on in this city? What are you hiding? Open up the doors. Let us in. Let us six feet away, so that we can have a free and fair election.

(END VIDEO CLIP)

ROBERTS: Now, most of the way across the country from Philadelphia, in Nevada, the president trails Joe Biden by about 12,000 votes.

The Trump campaign filing a federal lawsuit today, claiming that some

10,000 people who were not eligible to vote because they no longer had residence in the Silver State did vote, also saying that people who are dead had ballots cast in their name, Ric Grenell leading that effort.

Listen here.

(BEGIN VIDEO CLIP)

RICHARD GRENELL, FORMER ACTING U.S. DIRECTOR OF NATIONAL INTELLIGENCE: We are filing this federal lawsuit to protect legal voters. It is unacceptable in this country to have illegal votes counted. And that is what's happening in the state of Nevada. '

(END VIDEO CLIP)

ROBERTS: Now to a couple of other states.

Pennsylvania, still 369,000 ballots yet to be counted. A lot of those, some of the biggest numbers for those are in Democratic counties, some like Bucks County, which were sort of marginally Democratic, but others like Philadelphia County, which are hugely Democratic. So that's going to tighten the president's lead.

And then there's Georgia. This really is the one that we should be watching, Neil, because Georgia is so tight, and a lot of the votes that are outstanding are in those heavily Democratic counties, like Fulton and DeKalb and Cobb, Gwinnett, that whole area around Atlanta.

And the president's only ahead by a few thousand votes. So I think we should be paying a lot more attention to what's going on in Georgia -- Neil.

CAVUTO: That's a very good point, because even if they win back Arizona, it's put back in their column, you gain 11 there, but you lose Georgia, you have lost 16. You're down net five.

ROBERTS: Sixteen, yes.

CAVUTO: It's just tough, very, very tough.

All right, thank you, John Roberts.

Let's go now what Joe Biden is doing today.

For that, we go to Jacqui Heinrich -- Jacqui.

JACQUI HEINRICH, FOX NEWS CORRESPONDENT: Good afternoon, Neil.

Interesting development just in the last couple of seconds, actually. They did a sound check on the microphones behind me. Team Biden is very comfortable right now. They were touting this morning more votes for the former vice president than any presidential candidate in history and a greater share of the popular vote than icons like Richard Nixon and JFK.

And they say that team Trump is likely seeing the same data, and they believe that's why he's pushing this strategy to try to stop counting votes. On a press call this morning, Biden's campaign manager said Trump and Republicans are trying to create a cloud of confusion that might be effective with some of the public, but, in court, they're litigating over issues that have already been litigated. They say they're running out of ideas and they're getting desperate.

Now, back in September, Biden's team expanded their existing legal team of hundreds of lawyers across the country to prepare against what they saw as the president's continued efforts to suppress the vote, and sow disinformation and distrust in mail-in voting.

The Biden lawyers committee is headed up by general counsel Dana Remus and former Obama White House counsel Bob Bauer, plus two former solicitors general, Donald Verrilli Jr. and Walter Dellinger, both of them Supreme Court and appellate court advocates who each served at one point as the fourth highest ranking official at the Department of Justice. Former Obama administration Attorney General Eric Holder is also part of that effort.

Now, while team Biden takes on team Trump in court, the transition team is pulling together and the former vice president is preparing to become the president-elect.

(BEGIN VIDEO CLIP)

JEN O'MALLEY DILLON, BIDEN CAMPAIGN MANAGER: What I'm focused on is getting these final votes done. We're very focused on making sure the counting goes on.

The vice president is continuing to do the things that he's been doing every step of the way, not losing sight of the fact that COVID cases are rising day after day in this country as well and making sure that he is briefing on that.

(END VIDEO CLIP)

HEINRICH: Now, part of Biden's day today was getting a public health briefing on coronavirus from advisers. He has been doing those weekly for a few months now.

Now, in terms of the vote, the campaign is still confident they're going to hit that 270 number, might be today, might be tomorrow. They say that the margins are great in Pennsylvania. They're also comfortable in Arizona and Nevada -- Neil.

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

Speaking of Arizona, Trump campaign folks are commenting on that, a state that they argue is theirs; it's just in the wrong column here.

KELLI WARD, CHAIR, ARIZONA REPUBLICAN PARTY: There were hundreds and thousands of votes that are still out, hundreds of thousands of votes that are still out.

And even still today, there are hundreds of thousands of votes. And I can tell you that it is trending in the direction of President Donald J. Trump.

(CHEERING AND APPLAUSE)

WARD: We have the team on the ground. We have the people. We have the momentum. We have the activist community that is not going to allow this race to be stolen from President Trump or from Republicans all the way down the ballot.

(CHEERING AND APPLAUSE)

WARD: You can count on me. I can count on you.

I'm going to leave it at that, because you don't need to hear from me. You all know I think we're going to win this state for Donald Trump.

(CHEERING AND APPLAUSE)

WARD: I have got some awesome people here with me. And you're going to hear from Dave Bossie in just one moment, but I do want to introduce our congressman, Congressman Paul Gosar.

We have got Congresswoman Debbie Lesko. We have got COO of the Trump campaign Jeff DeWit, former treasurer. We have got (AUDIO GAP) Congressman John Shadegg, Boris Epshteyn right here. So, don't go away, because we are winning this. Stay vigilant. Stay awake. Do not let this election be stolen.

I won't. I know you won't. Here's Dave.

(CHEERING AND APPLAUSE)

DAVID BOSSIE, TRUMP 2020 CAMPAIGN SENIOR ADVISER: Thank you all very much.

Thank you so much.

Thank you, Kelli.

This is an exciting day. We are so proud of each and every one of you.

My name is David Bossie. And I'm a senior adviser to the Trump campaign.

And I'm happy to make -- I'm going to make a few -- thank you very much.

I'm going to be happy to make a few remarks, and then we're all happy to take questions when we're done.

First, I just want to say that Arizona's 11 Electoral College votes are going to be in Donald Trump's column when we get done with this.

(CHEERING AND APPLAUSE)

BOSSIE: Every legal ballot must be counted. We are here to protect every legal vote.

If the current trends continue, as we have seen, because we follow the science, President Trump is going to overtake Joe Biden, and we're going to when Arizona.

(CHEERING AND APPLAUSE)

BOSSIE: Look, the news organizations that prematurely called Arizona have really done a disservice to the American people.

(BOOING)

BOSSIE: And so, look, that's water under the bridge. What we're going to do, what we're going to do is prove them wrong. OK?

(CHEERING AND APPLAUSE)

BOSSIE: That's what we're here to do. We're going to make sure that every single vote counts, and we're going to prove to the American people that Arizona is Trump country.

(CHEERING AND APPLAUSE)

BOSSIE: And my next question is, what does the margin need to be in order for them to retract this horrible, horrible call?

That's a very important question. We must have the media -- look, after tonight, the margin is going to be much smaller. And so, when they prematurely called it, it was a bigger number, but it was only 70-some-odd percent in. It was an irresponsible thing to have done.

And we're here to protect the vote of the Arizona people. And I got to tell you, I see -- what is going on? It's the fake news media.

(CHEERING AND APPLAUSE)

BOSSIE: So, look...

CAVUTO: We're going to continue monitoring this. I apologize, some audio difficulties here.

But just the gist of it is, they're not happy that Arizona was called by this network and the Associated Press for Joe Biden election night, and they are still not letting go of that. They say that the ballots in hand, especially absentee ballots that are coming in, including day-of such ballots that typically go Republican, have not been counted, it's going to make up that difference, and it's going to make a huge difference there, and flip those 11 electoral votes that are right now in Joe Biden's column into the president's column here.

We will see how this goes. The voting does go on, as it does with the county in Pennsylvania right now and the back-and-forth and the lawsuits there.

As to whether that count is going legally, Jonathan Hunt on all of that. He joins us right now, not only just on what's happening across the country, but particularly right now with what's happening in Nevada itself -- Jonathan.

JONATHAN HUNT, FOX NEWS CORRESPONDENT: Yes, good afternoon, Neil.

Two major storylines from Nevada today, which is such a critical state, given that, according to the FOX count, former Vice President Joe Biden is at 264 Electoral College votes, Nevada has six. So, if Nevada goes to Biden, then he would be at that magic number of 270.

Today, thousands more votes tabulated and counted, and the Biden lead grew from around 8,000 over President Trump 24 hours ago to just a little under

12,000 as of today. We're expecting tens of thousands more to be counted through today. And those will be announced tomorrow morning.

But, certainly, at this point, the Biden camp would appear to have more cause for optimism than the Trump campaign. That is perhaps why we have seen today the announcement of this lawsuit to be filed by the Trump campaign, a rather bizarre news conference here, at which Trump campaign officials, including the former acting Director of National Intelligence Ric Grenell, jumped out of an SUV just on the street side to my left here.

They brought out a wooden podium, and then they made all manner of claims, that thousands of dead people are voting and those votes are being counted, thousands of people who are not actually residents of Nevada have voted, and those votes are being counted. They also complained about a lack of transparency, a lack of their ability to check signatures being looked at on those ballots.

The Clark County registrar -- and, remember, Clark County is home to 73 percent of all registered voters in Nevada -- said none of that has any evidence to back it up. Here's both sides. Listen.

(BEGIN VIDEO CLIP)

ADAM LAXALT, TRUMP CAMPAIGN CO-CHAIR: We firmly believe that there are many voters in this group of mail-in people that are not proper voters.

JOE GLORIA, CLARK COUNTY, GEORGIA, REGISTRAR: My response is that we are not aware of any improper ballots that are being processed.

(END VIDEO CLIP)

HUNT: Now as I mentioned, Neil, the Trump campaign officials offered scant evidence to back are these claims of thousands of fraudulent votes.

They introduced one voter, a woman, who said that her ballot and her roommate's had been stolen and submitted by somebody on their behalf. The county registrar said they investigated that. They believe that the signature on that ballot is that woman's. They gave her the chance to make an official statement. She declined.

And Ric Grenell was asked a lot of questions. Where is the evidence to back up all your claims? He chided the assembled media -- quote -- "You are here to take in information."

As you know better than anybody, Neil, that is not the way it works. Yes, we're here to take in information. But if somebody is making claims that will affect the democratic process of the presidential election, then we also are going to ask those people to provide evidence for those claims, rather than just throwing theories out there.

The Trump campaign declined specifically to give us any of that evidence today. It may be they're saving it for the judge, although we understand that that lawsuit that they say they're filing and is looking for emergency relief, ha not, in fact, yet been filed -- Neil.

CAVUTO: Jonathan, very good reporting, my friend. I appreciate it, Jonathan Hunt on all of that.

You have to prove what you're saying. You have to have evidence of what you're saying. So, to Jonathan's point, they might have that and might be forthcoming with that, but not yet.

Meanwhile, we're just getting word right now that Joe Biden will be addressing the media in a few minutes here. We don't know what that's about, maybe just an update on all of this. He was not taking any post- Election Day bows when he spoke last time here, although he is close, at

264 electoral votes.

Maybe they're convinced that the tide is going their way and so are the numbers, maybe something to do with that, or all these legal assaults right now, that both sides are waging one against the other. We will keep you posted on that and go to Wilmington, Delaware, as soon as we find out more.

In the meantime, want to go to Jonathan Turley, the George Washington University constitutional law professor, FOX News contributor, much, much more.

Jonathan, this legal back-and-forth is the mirror opposite of the party's stances back then. You had Democrats saying, count the votes, make sure the process is fair, Republicans saying this was going on and on and on and totally unnecessary.

Now the proverbial political shoe is on the other foot. So, that aside and the politics at play, I'm just wondering, the difference being that this plays out in so many states keeps this lingering longer. What do you think?

JONATHAN TURLEY, FOX NEWS CONTRIBUTOR: Well, after elections have been held, we're all from Missouri. The response to both parties is show me, OK?

Show me that you have these dead people voting.

I'm willing to believe that. I'm from Chicago. My relatives voted years after they died as I grew up.

(LAUGHTER)

TURLEY: So it's not that I don't believe that people can vote. I can personally attest to that. But you need to show us.

And that's going to come with these filings. The Nevada allegation is important, because it is a large group of claimed unlawful ballots. Most of these challenges, we're talking about small pockets of ballots that may not change the outcome.

And so we're now getting to the point where we're not just looking at the allegations, but also the number of votes that these litigants are claiming, as impacted by irregularities.

Keep in mind, judges don't do this for recreation. If they see a challenge that is below the margin of the vote difference, they're not inclined to go heavily in that direction. So, we're now going to be in that stage where these allegations are going to have to come with more concrete figures and data.

CAVUTO: You know what complicates things? I'm stating the obvious. The closer vote is in a particular state -- and there are five or six that are being scrutinized here -- the more you have to make sure your I's are dotted and T's are crossed, everything's by the letter, because every ballot makes a difference.

One thrown out can't be just easily dismissed. But it does make it tough to form an early conclusion. And I'm just wondering, from a legal perspective, let's say Joe Biden was to secure the 270 electoral votes in the middle of all of this, then what?

Does it put added pressure on the whole system, as it looks like there's one guy that now just says, all right, I'm at that number?

TURLEY: Yes, I -- look, I think it is that having 270 in terms of expected electoral votes is not going to be sufficient.

These votes have to be certified. That's going to come after a series of challenges. And people need to keep in mind we have a wonderful legal system. Despite all the attacks on courts from both sides, we have a system that it is designed for bad times like this. That's what the U.S.

Constitution is. It's designed for bad times.

And it has done very well. We have to trust it. But when someone claims they have 270 at this stage, that is more of a promise than a reality, until we get through some of these challenges.

The things we're looking at, once again, are states like Pennsylvania, where there's challenges to a category of ballots, which is one of the things that we really look for. There, all these ballots that were counted after the legislative period could be challenged.

In Nevada, we have heard a figure of 10,000 or more votes that may be challenged as invalid. Obviously, as a legal matter, I can certainly tell you a dead person's vote is not valid if they died before the election.

So, we have to see if there are other large groups of ballots in the mix.

Now, obviously, we still have some significant questions, whether Arizona is going to flip, whether we're going to see the tightening in Georgia and Nevada.

Those are issues where the legal questions may become moot if you have clear electoral votes that cannot be changed by existing legal challenges.

CAVUTO: All right, thank you, Jonathan Turley. We will watch that one very, very closely.

We are waiting for Joe Biden,. He's going to be coming up to the microphone soon.

Let's listen right now.

(JOINED IN PROGRESS)

JOE BIDEN (D), PRESIDENTIAL CANDIDATE: ... deaths due to the COVID. And our hearts go out to each and every family that has lost a loved one to this terrible disease.

In America the vote is sacred. It's how people of this nation express their will. And it is the will of the voters, no one, not anything else, that chooses the president of the United States of America.

So, each ballot must be counted. And that's what we're going to see going through now. And that's how it should be. Democracy is sometimes messy. It sometimes requires a little patience as well. But that patience has been rewarded now for more than 240 years with a system of governance that's been the envy of the world.

We continue to feel, the senator and I, we continue to feel very good about where things stand. We have no doubt that, when the count is finished, Senator Harris and I will be declared the winners.

So, I ask everyone to stay calm, all the people to stay calm. The process is working. The count is being completed. And we will know very soon.

So, thank you all for your patience. But we have to count the votes.

God bless you all. And may God protect our troops. Thank you so much.

CAVUTO: All right, you have been listening to Joe Biden and Kamala Harris, short and sweet.

America, be patient. We think that trend is looking good for us, without declaring victory, confident that it will be forthcoming.

Please take to the FOX News Channel and this FOX station. I'm Neil Cavuto in New York.

All right, so there's where we stand right now. This is an interesting time for Joe Biden to be making these remarks, because a lot of people were thinking that, by the end of today, we could get some confirmation one way or the other out of Nevada, and the count that goes on there.

Because there were indications earlier that they were very, very close to making a call on that one and the six electoral votes there, on top of the

264 electoral votes Joe Biden has, would bring him to 270 and would make him president-elect.

That does not appear the case. Today does not appear to be the day. So, that might have to be held off a little while.

There are also other issues coming up with other states that are thorny in their own way.

Grady Trimble right now on the tightening race in Pennsylvania and counting thousands of ballots -- Grady.

GRADY TRIMBLE, FOX NEWS CORRESPONDENT: Neil, there have been dueling protests here all day at the Pennsylvania Convention Center where Philadelphia's mail-in votes are still being counted at this hour.

On the one hand you see there are anti-Trump count every vote protesters.

On the other side of the street here, there are pro-Trump protesters who support the legal action the campaign took to get better access to where those votes are being counted, so they can observe the process.

And, at times, the two sides, well, they engaged with each other. Listen.

(BEGIN VIDEO CLIP)

UNIDENTIFIED PROTESTERS: Count every vote! Count every vote! Count every vote! Count every vote! Count every vote!

(END VIDEO CLIP)

TRIMBLE: The courts here in Pennsylvania sided with the Trump campaign, saying staffers like Corey Lewandowski and Pam Bondi and about a dozen others should be allowed in the Convention Center within six feet of where those votes are being counted.

Lewandowski and Bondi went into the Convention Center, but then about two hours later, they came back out and said that the election officials inside there were not complying with that order.

We then heard from the city, after a brief pause in counting the votes. The city says that they disagree with the court's decision and they will be appealing it.

The Pennsylvania governor, who's a Democrat, had this to say about the ordeal here today: "Pennsylvania is going to count every vote, and no amount of intimidation will stop our dedicated election officials in our municipalities."

Three hundred and forty thousand mail-in votes still have to be counted across the state of Pennsylvania. That's about 13 percent of the total mail-in votes that the state received. And the secretary of state indicated today that they could wrap up counting today.

And that would lead us closer to finding out who wins this crucial state -- Neil.

CAVUTO: All right, Grady Trimble, thank you very much.

So, where are we right now legally?

Let's go to Brian Silber, an election law attorney, joins us via Skype.

Brian, thank you for taking the time.

If you don't mind, I want to go actually backwards. I want to go to the Supreme Court and what it weighs and when it would potentially weigh it.

I had the feeling that the Supreme Court would prefer all other options, other lower courts, settlements be set -- be arranged long before it gets to that, long before it becomes even necessary to ask them.

What do you think?

BRIAN SILBER, ELECTION LAW ATTORNEY: Well, of course, it has to meander its way through the courts.

We have a very established legal system in this country. You first have to go to the trial level with your issues. For example, the president was successful in getting his temporary restraining order, so that Pam Bondi and the other people could view the counting, OK?

There's going to be an appeal. It's going to go to the appellate court.

That ruling will then be appealed further. And that's when the Supremes will get it.

But, honestly, I just don't see where the end is here. We have got to see where the dust settles. Everybody should have a fair chance to participate, observe the process. That is standard across this country.

I can tell you, here in Broward County, when I have done recounts myself for candidates, the way they have it set up there, it's a giant floor-to- ceiling glass partition that goes wall to wall. It almost looks like a Krispy Kreme, with the machines on the other side. And it's open for everybody to watch.

So I totally don't get it. But, to answer your question, it's got to meander through the courts. And, my God, I hope they just do something about this and overhaul the system. We're America. We put a man on the moon. We have companies like Apple. We have other great achievements.

Why can't we figure out these elections? We need to be the gold standard and show everyone else how it's done. And that's just not happening right now.

CAVUTO: You might have a good idea. If Apple had handled this, there would be an app for that, and we would have figured it out.

(LAUGHTER)

CAVUTO: But, Brian, it's interesting, too. Lawyers and courts cannot overrule or complicate the will of the people.

What's confusing here in this counting process is how routinely we discover that sometimes we don't know the will of the people, or the ballots are confusing with the postmark is not readily available.

Now, when they're blowouts. that doesn't even come up. But it's a reminder once again that these are far more common. And in closer races, as are increasingly all of these remaining battlegrounds, it makes a huge difference here.

And it could explain, while protests develop across the country -- we're seeing one right now in Philadelphia -- both sides represented that the other side is sort of screwing them. And I'm just wondering how we resolve this, because, the longer these counts go on, the more this heats up.

So, what is paramount now in the counting process, especially for those watching it closely?

SILBER: Well, if I was in charge, I would, number one, say transparency.

The first thing and the most important thing is the public, the candidates and the world have to have faith in the system. If we don't have faith in the system, there's no system. People won't abide by it. They won't respect it. They won't follow it. They will disregard it. So that would be the first thing.

The second thing is process. It has to be fair. We have to make sure the law is followed. So, for instance, when a party has the right to be present and simply watch and observe, they should be allowed to do that. There shouldn't be funny things about, oh, we're going to move the machines or we're going to have this partition.

That's -- to me, that's outrageous. And, ultimately, the main thing is they have got to show leadership and they have got to get the job done. They have got to fight through this, count all those votes, and make sure it's fair for everybody. That's how I would handle it.

CAVUTO: Not bad for a lawyer, young man. Thank you very much.

(LAUGHTER)

SILBER: Thank you, Neil.

CAVUTO: And you're right on all counts.

Brian Silber, thank you very much, election law attorney.

Before we take a quick break here, I want you to take a peek of what's going on in Georgia right now. That's another one too close to call. That, you know, the back-and-forth on that and counting ballots.

But I want you to pay attention to the fact that both of these gentlemen right now, Joe Biden and the president, are under 50 percent. No matter how that count goes, and they stay under that, they would have to presumably have a run-off here, because, in Georgia, they require you have to have 50 percent of the vote plus one.

What if we end up, after this counting, no matter how close it gets that neither guy is there? Let's say not peachy -- after this.

(COMMERCIAL BREAK)

CAVUTO: Protests in Philadelphia, still no word on who the next U.S.

president will be, and stocks racing ahead, another triple-digit advance.

What does Wall Street see that Main Street apparently does not?

After this.

(COMMERCIAL BREAK)

CAVUTO: So, let me be brief. There are a lot of briefs, legal briefs, and all at the time Joe Biden finds himself on the precipice of becoming the next president of the United States.

But what's that expression? So close, but so far. He's not at 270 yet.

Welcome back, everybody. I'm Neil Cavuto.

A couple of things we're following right now are the multiple lawsuits around the country led by the Trump campaign. And that is happening, and then particularly the very obvious right now with what's going on in Georgia, in Pennsylvania, in Michigan, a host of others.

We're going to go through some of the more prominent ones one by one, first with Steve Harrigan, who's following the lawsuits in Georgia -- sir.

STEVE HARRIGAN, FOX NEWS CORRESPONDENT: Neil, it's a real drama in Georgia that just goes on hour after hour.

There's really two figures to keep your eye on in Georgia. One is the number of outstanding ballots that still need to be counted. Right now, that stands at about 47,000.

The other is the Trump lead. It has been shrinking hour by hour. The Trump lead now, about two minutes ago, stood at 12,700, so, 47,000 ballots still to be counted and a Trump rally that's getting smaller by the hour of about 12,000.

Over and over again throughout the day, we have heard Georgia election officials ask for patience.

(BEGIN VIDEO CLIP)

GABRIEL STERLING, GEORGIA VOTING SYSTEM IMPLEMENTATION MANAGER: The effort here is to make sure that everybody's vote, legal vote, is counted properly, and that the actual results are reflective of the voters' intent.

The issue we have in Georgia is, like I said, it's a close vote. There's other states that have more votes to count than we do, but it's a wide margin, so nobody cares.

So, this is the first time we have used paper ballots in the state in 20 years.

(END VIDEO CLIP)

HARRIGAN: These election officials keep getting asked over and over, when is this going to be done?

It has to be done, according to state law, by November 20. They have to certify the ballots by then. Election officials are saying they're already planning for a possible -- a possible potential recount, which would add another week to that date, even after November 20 -- Neil, back to you.

CAVUTO: All right, thank you, my friend, very much, Steve Harrigan following all those developments in Atlanta.

Let's get the latest read on what's going on in Michigan right now, that news organizations have cold that state for Joe Biden. It's not quite the same as Arizona here, where we did that along with the Associated Press.

But the argument there is pretty much the same from the Trump camp, that that was all prematurely done, and not all ballots has been fairly counted or represent what's really going on.

Jim Trusty joins us right now, the former DOJ prosecutor, much, much more.

Jim, there are so many states, so many issues, so many briefs. But let's focus on Michigan for the time being, because that's a state presumably called. And it was not only this, but virtually all major news organizations have called it.

So, their argument has to be what to say, wait a minute?

JAMES TRUSTY, FORMER FEDERAL PROSECUTOR: Well, it's very uphill.

I mean, let's -- let's be realistic about it. When you're talking about procedural challenges, saying there's something irregular about the observation process, or just asking for a recount, or doing individual assessments of ballots, those tend to nibble at the margin. They don't tend to overturn overall results in the long run.

So, I think the lawsuit in Michigan is probably not as compelling or at least has as much potential, I would say, as something in Pennsylvania might have. And there are real differences.

I mean, if you're in compliance, in general, with your state rules, which is what dictates federal election process, it's very hard to get a court to see sufficient evidence to actually overturn that on any fundamental level.

Now, Pennsylvania's a little bit different, Neil, just because you had the Supreme Court altering the legislative plan when it comes to the election.

So that could tickle an interest in the Supreme Court someday, reluctant interest, but an interest nonetheless, because of the balance of power or the kind of checks and balances that were supposed to be in place may not have worked.

CAVUTO: One of the things that is different here is the role eventually the Supreme Court might have to play. And I have raised it with other guests.

If you don't mind, I will raise it with you.

The Supreme Court would, I'm sure, prefer not to handle a hot potato, go ahead and deal with it at the local level, at the district level, either in a county level, have the registrars handle that, if need be, maybe take it to a court at that level, maybe go all the way up to the state Supreme Court there, and only then and only then, and we pray not, bring it to us.

Is that their general preference?

TRUSTY: Yes, I think that's exactly right.

And there's really kind of a practical and a philosophical reason behind that. The practical thing is this. We're talking about state election law, state process. So, just in general, it's very difficult to build a record of actual prejudice to your campaign that will stand or withstand the whole process of going up the pyramid, through the state court system, all the way through the federal court system, to the Supreme Court.

The other thing, Neil -- and this is really maybe a supreme irony at work here -- federalism. I mean, you have a conservative Supreme Court. They generally are not going to want to wade into state process for the sake of wading into state process.

So, ironically, you have got Democrats that are hoping that judicial conservatism wins the day and conservatives are probably thinking we need a little activism, the Supreme Court to reach out and get involved in this stuff.

CAVUTO: Jim, what difference does it make, I know it shouldn't make, but does it make when you see these growing protests, and you see that it's gotten heated on both sides?

Does that make a difference in when these things and how they are legally advancing?

TRUSTY: No, I don't think so, I mean, hopefully not. The courts shouldn't be responding to mobs from either side.

And that brings me to a related point, Neil, which is, I don't think that the president is really well-served right now by the lawyers spending their time doing basically legal pep rallies. That's not really what matters at this juncture, getting people whipped up and saying, we can prove it.

It's actually proving it. It's coming up with hard-core evidence that you can put into a civil complaint that will withstand the scrutiny and be sufficient for a higher court to act on it. And that's the challenge here.

It's not just about innuendo or raw numbers. It's not going to be easy.

You're not going to have people that say, I confess, I just altered 100,000 ballots. But that's where the focus has to be, is developing sufficient evidence in a race where that can make the difference, so it can withstand judicial scrutiny as it goes up the chain.

CAVUTO: All right, Jim Trusty, thank you very much, my friend. Good picking that fine legal mind of yours.

All right, at the corner of Wall and Broad today, I know it seems like a disconnect. And, man oh, man, today, it was a disconnect, just as it's been kind of all this eventful week. Stocks soared again. Technology soared again, Apple, Amazon of a host of other technology names soaring again, in the middle of what we're told is a growing constitutional crisis.

What the heck is going on? We connect, you might want to hide.

(COMMERCIAL BREAK)

CAVUTO: All right, we're getting word, as you're looking at Philadelphia right now, that Pam Bondi, the former Florida attorney general, Corey Lewandowski are going to have another press conference right now. They're going to outline where things stand in the legal challenge in Pennsylvania about how they're counting these votes.

They complained a little earlier that they really weren't allowed to see what the heck was going on, and the back-and-forth continues. So, again, when they speak, we will bring you right to them.

But Pennsylvania just one a half-a-dozen states right now under extra scrutiny, and doesn't Bill Hemmer know it? And Bill has been on the air around the clock on all the networks.

And just, Bill, if you could work just a tad bit harder.

(LAUGHTER)

CAVUTO: But maybe you can update me on where things stand right now.

BILL HEMMER, FOX NEWS ANCHOR: Just trying to pick up on your own work ethic.

CAVUTO: Holy Toledo.

HEMMER: You set the standard around here, Neil.

CAVUTO: Oh, my gosh. Crazy...

(CROSSTALK)

HEMMER: Good afternoon to you.

I will tell you, at 10:00 this morning, you start checking the PA numbers, and I will go through them with you. And I will take you to Nevada and Arizona after that. And I will do it quickly, Neil, so make it as simply, as easily to understand it.

At 10:00 a.m. this morning East Coast time, Joe Biden was trailing Donald Trump by 135,000 votes in PA. By 1:00, that had been reduced by 20,000 votes to 115,000. And at the moment, it's another 20,000 less at 95,000.

So, where are these votes coming from? Pittsburgh said they're going to pick things up again tomorrow. So, that's over here in Allegheny County.

This is Philadelphia. They were kind of stop and start earlier today, ton of Democratic votes. I mean, that's just -- that's just the way it is in Philadelphia, a difference here of about 377,000.

Neil, a bit earlier today, with our decision team, we had believed that there were about 250,000 outstanding votes in Philadelphia. If that is the case, and if our estimate is anywhere close to being true, and if you're getting bet 80 percent of the votes, your math would tell you that Joe Biden's going to pick up a lot of those votes, and probably check in with about 135,000, 140,000 of those, if that's the case.

Again, that's just our estimate.

The collar counties around Philadelphia, I would just keep a close eye on this throughout the night just to see how they check in and see how -- see how they change, Bucks County, PA, real bellwether here, super close in this county, a difference here of 8,300.

Pop on over here to Montgomery County, which went for Joe Biden more favorably than Bucks County did. Bucks County tend to be a bit of a bellwether, as we have seen for the past several cycles. Difference there was 130,000 votes.

Just pop down here to Chester. OK, you're at 50,000 votes, still Democratic bastion over here in Southeastern PA, and Delaware County, difference of

71,000 votes, but Joe Biden's getting close to 62 percent of the vote there.

So, I -- if you are trying to figure out how this all falls in tonight throughout the night, I would keep watching down here in the Southeastern part of the state.

Nevada is not going to give us any more votes today. They gave us a batch from Clark County. Las Vegas is down here, Reno up here. Clark County chipped in a short time ago. They have got -- well, the difference in the vote here, 64,000, between Biden and Trump, on the margins there.

At the state level, it's so much tighter, 11,000 votes separating the two.

Earlier today, about the same time frame I was giving you a moment ago, that was up around 7,000. Last night, it was up a little higher than that too. I'm just trying to keep the timing and the clock straight in my head here.

Arizona's much debated. I mean, you can see it for yourself, Neil. We have made the call the other night, still on the board here; 68,000 is the difference between Biden and Trump at the moment. Here is Phoenix. Down here is Tucson.

We got a dump in certain parts of Arizona late last night that -- I think it was 79,000 total votes, and the president cut into Joe Biden's lead by 13,000.

So, the Trump camp is making this argument here -- and you heard David Bossie a moment ago the microphone -- that they think they can still flip the state of Arizona. So that's the lay of the land.

I didn't take you to Georgia or North Carolina, but, by then, you would be bored. Just take my word for it.

(LAUGHTER)

HEMMER: It is tight, it is close, and it is changing, not by big margins.

But, with such small margins, it can make a dramatic impact on so many of these states right now, Neil.

CAVUTO: Absolutely.

Yes. And, as you said, the count goes on. One by one by one, it goes on.

HEMMER: You bet.

CAVUTO: All right, thank you, my friend very, very much, Bill Hemmer on that.

You were probably wondering why the stock market was advancing today, as it was yesterday, as it was the day before that, as it was the day before that, as it was the Friday before that, in the face of all of this tumult and confusion, in fact, even more so now, post-Election Day, and all the new confusion.

Why is that? Why are we now looking, with one day to go, one of the best weeks for the markets since back in April, after one of the worst weeks for the markets since back in March?

John Bussey, the Wall Street Journal associate editor, with us, Heather Zumarraga, Zuma Global president.

Heather, what's going on? It's got to be a disconnect, or is there a connect?

HEATHER ZUMARRAGA, FINANCIAL ANALYST: Right.

All the -- despite all of the election uncertainty, the stock market is still heading a lot higher, Neil, because of a few things, mainly because there's no blue wave, right? The Senate is going to be in control by the Republicans still, while the Democrats keep the House.

And that means less likely for corporate taxes to head higher, less likely for capital gains to go up, less likely for the Green New Deal and other radical job-killing energy policies, regardless of if it's a president- elect Trump or Biden.

And that's why the markets are heading higher. They actually do better, if you look back in history, when Congress is split, regardless who's in office.

CAVUTO: Yes.

But, John Bussey, I thought the market didn't like uncertainty. And there's a lot of uncertainty around this election. I could see the Senate thing. I get that. But this could drag on a while for the White House.

JOHN BUSSEY, THE WALL STREET JOURNAL: (AUDIO GAP) certainty.

And so what the markets are probably discounting here is that they have one of two possibilities. One, President Trump wins the election, in which case the markets are familiar with that policy. The other is that Joe Biden wins, and that it's a split government, it's a divided government, with a Senate that is not necessarily in Democratic control.

We may have a couple of run-offs that happened in December as a result of the election on Tuesday. But it looks like it's going to be a divided government, which leads to a certain status and a certain status quo. And the market likes that. There's no big sudden changes.

A big elephant in the room, though, Neil, is the coronavirus.

CAVUTO: Right.

BUSSEY: The Fed raised concerns about it again.

CAVUTO: Yes, I'm glad you mentioned that. I was just going to as well, because, Heather, on that front, a couple of days of 100,000-plus new cases has folks wondering.

We appreciate the drama around the election, but this virus thing is scaring us as well. Now, there might be some belief that a vaccine is on the horizon or that death counts are still stable, if not down.

But that is out there, is it not? Is it a concern for -- forgot about average Americans. What about investors?

ZUMARRAGA: Absolutely.

And, look, we're going into the holiday shopping season. Never too early to start talking about that, because if more Americans lose their job, if the economy shuts down -- we're getting the October jobs report tomorrow. It may be the weakest since May, when we reopened the economy.

So, I want to look at the retail sales data. I'm also keeping an eye on jobs. It is important to keep the economy open, as was evident in the GDP report. But the coronavirus surge in cases will have an impact on the stock market, if we don't get a vaccine soon.

CAVUTO: Then comes stimulus. That's something sort of like waiting for Godot for the markets, for everybody, I guess, John.

But the argument that something could be cobbled together, even in a lame- duck session of Congress, how likely is that?

BUSSEY: Well, we haven't seen it up to date, have we?

CAVUTO: No, we have not.

BUSSEY: We have seen splits that just have not been resolvable.

And the market seems to have kind of digested that, metabolized it, and said something is eventually forthcoming. The Fed is not quite as sure.

It's been raising kind of the -- it's been sending up a couple of flares on this, saying that Congress needs to really be thinking about fiscal moves.

It needs to be thinking about stimulus.

It's keeping that very much -- very much front and center for Congress to act on. And yet we haven't seen that. We haven't seen that yet.

The other thing is that, at 100,000 cases a day, at some point, this is going to grind down economic activity. The market seems to feel that a -- that some kind of a vaccine will kind of resolve that.

But that's several months out still. And you have got a period now that the Fed is focused on and is thinking, what's going to get us from here to there? It's going to be spending by the government, and it's going to be additional worker benefits. It's going to be more help for small businesses.

And we don't see that program yet.

CAVUTO: I'm wondering, too, the drip, drip of allegations we get on these various states, on how that's going to factor out, Heather.

The reason I mention it is, we're getting a statement from the Department of Justice on some ballot counting irregularities, of which they say: "The Department of Justice will pursue all actionable information it receives and, as always is the case, encourages anyone who suspects a federal crime to report it to their local FBI office."

So that's almost stating that you expect crimes. And I'm wondering if that shakes support in the system itself?

ZUMARRAGA: Well, so far, so good.

We have had peace and law and order for the most part. And I think that the stock market is really counting on the judiciary system to work, right? Let it go through the court system, if necessary. And the stock market, again, is overseeing, regardless of Biden or Trump uncertainty as president-elect, that a divided Congress may be the best thing for the American people and the stock market at this point in time.

CAVUTO: All right, guys, I want to thank you both very, very much.

We mentioned then what's going on right now, and the DOJ looking at all of this, and talking about responsibility and accountability, and that everyone's doing what they should, but by making the statement, maybe scaring more folks in the process.

Want to go to Philadelphia right now and Eric Shawn following a lot of this protest activity, and one that could increase certainly in the hours ahead, certainly in the days ahead.

Eric Shawn, what are you seeing?

ERIC SHAWN, FOX NEWS SENIOR CORRESPONDENT: Yes, that's right, Neil.

We're right in front of the Convention Center, where the counting is continuing. And around the corner, up the block, there's a penned-out area where the protesters are on one side of the street. We have got all the anti-Trump, pro-continue-the-counting protesters. It's kind of a musical festival over there, while in the pens, you have got the Trump-Pence supporters separated by police who are on a bicycle.

More importantly, right at the moment, Pam Bondi, the Trump lawyer, and Corey Lewandowski, senior adviser, about to hold a news conference about a second lawsuit that the Trump campaign has filed here.

The first one they found had to do with the length of -- from where the poll watchers can stand when they're counting the ballots. The rules here are 25 feet. A federal judge this morning said, no, you can go six feet.

The Philadelphia Board of Elections is appealing that to the Pennsylvania state Supreme Court.

I talked to a Republican poll watcher, Kevin McCaffrey (ph), who told me that he can't see a thing, even from like six or seven feet or so. But a judge has said they are poll watchers to observe, not to audit the vote.

The new lawsuit just announced from the Trump campaign deals with some other areas. They claim that the GOP and Trump campaign poll watchers have not been allowed at all in to observe the vote.

But that, apparently, it seems is not the case.

Here is the full-screen quote from the lawsuit. It says: "The county Board of Elections is aware of the order, but is intentionally refusing to allow our any representatives and poll watchers for President Trump and the Republican Party. The county Board of Elections is nonetheless continuing to count ballots without any observation by any representatives or poll watchers of President Trump and the Republican Party. The county Board of Elections is intentionally violating the state law."

But we have the photograph taken by a Republican poll watcher inside there watching the process, although he said he is not close enough -- Neil, back to you.

CAVUTO: All right. Thank you, Eric Shawn, for that.

Pam Bondi and Corey Lewandowski seem to be ready to speak right now.

Let's go to them.

(JOINED IN PROGRESS)

BONDI: ... on what has been happening.

They have refused to let us have meaningful -- a meaningful view of the vote count. They have continued to count the votes. Because they have done nothing to help us, they are not letting every legal count. They're letting anything come in.

They are not letting us look at anything at all, nothing.

So we have filed in federal court. We have just filed a motion in federal court for immediate injunctive relief to shut down the voting process until, until we can get a resolution where we can look at these ballots.

There's a reason that they're suppressing the election results, the legal election results, because they will not let us look at the ballots.

Whether your a Democrat or a Republican, you should care about this.

They're trying to suppress our voices now. And they will not do it.

So, we have filed in federal court for immediate injunctive relief.

LEWANDOWSKI: Listen, guys, it's very simple here.

A judge in this state issued a ruling that the Board of Elections has summarily dismissed. They believe they're above the law. So, because they would not follow the law, the state of Pennsylvania, we have filed for federal relief.

That is what we're doing, because we will not let the people of Pennsylvania go without having an election observer for every single ballot!

(CHEERING AND APPLAUSE)

LEWANDOWSKI: It is shameful!

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