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What Ruth Bader Ginsburg’s death means for a potentially contested presidential election

Yahoo Finance Editor-in-chief Andy Serwer, HuffPost Washington Bureau Chief Amanda Terkel, Yahoo News Editor-in-Chief Dan Klaidman, and HuffPost reporter Paul Blumenthal discuss the effects of former Supreme Court justice Ruth Bader Ginsburg's death on the upcoming presidential election.

Video Transcript

ANDY SERWER: We're now joined by HuffPost reporter Paul Blumenthal. Paul, welcome

PAUL BLUMENTHAL: Hey, thanks for having me.

ANDY SERWER: So I want to ask you about Ruth Bader Ginsburg and her passing, and the potential impact on a contested election. How are those things connected, Paul?

PAUL BLUMENTHAL: Well, you know, we're headed into an election where Donald Trump has said that he can't lose unless it's a rigged or fraudulent vote. And he says this without any evidence, of course. But what this means is that he could wind up challenging, say, whether certain absentee ballots should be counted that come in after Election Day or that need to be counted because they come in late on Election Day.

And what this means is, this could go to the court system, could go to the Supreme Court and end with a 5-3 court. Eight total justices, that could wind up in a 4-4 tie, potentially. So I mean, this has already come up among Republicans who use this point to say that's why we need to appoint a justice before the election.

But of course, the same number of justices were in place in 2016 before the election where Trump was also saying that he could only lose if there was a rigged, fraud-- fraudulent election. So I mean, the lack of a fourth vote, especially on the liberal bloc is a big deal for what could be another potential Bush v. Gore type situation.

AMANDA TERKEL: Hey, Paul. So you know, let's-- let's pretend that for some reason, you know, it either-- it doesn't make it up to the high court, it makes it up to the high court, but it's a 4-4 split still because Trump doesn't get his nominee through in time. You know, Trump has put so many other judges on the federal bench. And so can you talk about, you know, what are his chances if, you know, it gets kicked back down to one of the lower courts or something like that.

PAUL BLUMENTHAL: Well, yeah, I mean, that's what would happen, say, if Chief Justice John Roberts, who's viewed as the swing justice on the Supreme Court, decides to side with the liberals, put this into a tie. What would happen is it would uphold whatever the next lower court ruling is. So that would be an appellate court, which would matter, you know-- every region of the country, it's a different appellate court. And so many of them under Trump, and thanks to Mitch McConnell, have been packed with Republican conservative justices.

And I mean, this really changes the dynamics and it really highlights how important Trump's presidency has been to people like McConnell and the conservative legal movement in installing judges that-- you know, McConnell held these seats open by filibustering them, putting holds on them and blocks under Barack Obama's presidency. And now, they're filled with Trump nominees. Trump has appointed more appellate court judges than any president, for the judges that are currently serving. So he's appointed, you know, almost twice as many as Obama did during his two terms.

DAN KLAIDMAN: Paul, it's Dan. I don't want to get too wonky on the law here, but I do want to drill down a little bit. What you're saying is that if there is a 4-4 tie, then the-- whatever appellate court kicked it up to the Supreme Court, it comes back to them. And whatever they decided is controlling law for the whole country.

So at that point, you have an appeals court that really represents a very small part of the country making this decision about the United States election. Is that possible? I mean, is there nothing at that point that Chief Justice Roberts could do? Can the court reach down and-- I mean, how does that get resolved?

PAUL BLUMENTHAL: Well, you'd think that perhaps the Supreme Court would decide to resolve that by not moving to a 4-4 tie, you know. They can--

DAN KLAIDMAN: Right.

PAUL BLUMENTHAL: --decide to have a different decision there. I mean, obviously, an appellate court for a particular region of the country deciding the presidency would, you know, be very difficult to handle for this country at this moment, especially considering how contentious elections are right now, especially this one.

DAN KLAIDMAN: And I think it would be, from Chief Justice Roberts's view, kind of disastrous-- someone who is an institutionalist, who wants to protect the reputation and the strength of the Supreme Court. So what a crazy scenario that would be.

PAUL BLUMENTHAL: I mean, it would be an unprecedented crazy scenario. I mean, even if we don't move to that scenario, the current one that we have where, you know, a justice is going to be appointed before the election, a 6-3 conservative majority where Donald Trump is saying that, you know, he wants this appointee before the election because they will stop the ballots from being counted. So I mean, even just the normal scenario is pretty crazy.

ANDY SERWER: Hey, Paul. Dan earlier on mentioned that Joe Biden did not seem too keen to seize upon this as an issue. However, he did weigh in a few days earlier. So let's take a listen to what Vice President Biden had to say about this issue.

JOE BIDEN: There is no doubt-- let me be clear-- that the voters should pick the president, and the president should pick the Justice for the Senate to consider. This was the position the Republican Senate took in 2016 when there were almost 10 months to go before the election. That's the position the United States Senate must take today.

ANDY SERWER: And I wanted to ask you, Paul-- I mean, if Mitch McConnell puts forth, say, Amy Coney Barrett and she is confirmed, and therefore you have the full nine, and you have a contested election, I mean, that's another scenario that could very easily play out, right?

PAUL BLUMENTHAL: Yeah, I mean, that's I think what I was just-- just saying is, a 6-3 conservative majority where John Roberts is no longer the swing justice. You know, you have three appointees made by Donald Trump. Donald Trump likes to call his judges "my judges," you know? He has a view of the court, and his appointees, and people that he is put into positions of power, that they owe him something, you know? He talks and acts a lot like a mafia boss in this manner.

And he has explicitly said that he wants to put this person on there before the election so that they will stop the ballots from being counted. So he does not want every vote to be counted in this election. He wants to win by stopping the counting of ballots, hoping that he has enough to win counting only on Election Day, and not any ballots that might be counted afterwards.

ANDY SERWER: All right. HuffPost reporter Paul Blumenthal, thank you so much for joining us.