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'It is a very likely possibility' Trump would win in election courts: Rutgers Law Professor

Rutgers Law School Professor Stacy Hawkins joins Yahoo Finance's Kristin Myers to discuss the legal challenges percolating around state ballot counts in the 2020 election.

Video Transcript

KRISTIN MYERS: So let's talk now about any challenges, legal challenges, to the election. We're joined now by Rutgers Law School Professor Stacy Hawkins. Professor, thank you so much for joining us today.

We're seeing right now President Trump is tweeting up a storm, including some retweets that say that this election should go to the Court. Now you are a constitutional lawyer. What is the procedure? In an election like this one, as you see it, do you see this going to the courts?

STACY HAWKINS: So that's certainly what Trump has always said that he wanted. From the very beginning, he's wanted this election to go to the Court. And he has declared that he will not accept the results if they are not favorable to him and that he will challenge them. He's already begun to do that.

Wisconsin, his lawyers have declared that they're about to file a challenge in Wisconsin. So you first file a recount challenge or if there are any other procedural irregularities with respect to the election process of administration, as we saw in, for instance, Wisconsin and Pennsylvania in so far as counting ballots that come in after Election Day.

And so we expect those to continue, in addition to anywhere where there's a close margin that is within the recount margin for the state, that we expect that to be challenged, which is what he's doing in Wisconsin.

KRISTIN MYERS: And I do want to ask here, professor. I mean, is it just that simple that one of the candidates can say, hey, I don't actually think that the counts are valid. I don't think that I actually lost the elections, and I'm just going to sue and try to essentially overturn the results.

STACY HAWKINS: So it has to be close enough. In order to challenge on the basis of a recount, each state sets the recount margin within which, yes, any candidate is entitled to challenge the election results. And it seems as though in all of these key battleground states, as it was last year, these margins are razor thin. And so we already know that the Secretary of State for Wisconsin has said that they're almost done with their count. And they are, in fact, within the margin for the recount.

And so the Trump campaign has already indicated that they plan to contest that election and demand a recount. And so that process is likely to proceed. And so every state has their rules. And again, we know, at least based on 2016 and based on existing modeling for how close the margins are in each of these states, Michigan and Pennsylvania, in particular, that they are likely to be within the margin for the recount as well.

But there are additional concerns because Trump has, of course, already litigated the issue about ballots being counted that are received after Election Day in Pennsylvania. He is expected to continue to challenge that. In fact, the petition is currently before the Supreme Court to rehear that case. And so there are lots of grounds on which the Trump campaign is expected to be able to challenge the election results. Within the margin of error for recount is only one of them.

KRISTIN MYERS: So let's just assume this is going to be going to the Supreme Court. Let's just assume that scenario right now is the base case. Now Democrats have long feared that Amy Coney Barrett's appointment to the Supreme Court would essentially spell out a victory for President Trump if the election went to the Supreme Court.

And now here we are. As you're mentioning, there are legal basis for some of these challenges. Do you think that the Democratic fear that President Trump will be able to, you know, quote unquote, "steal" the election through the court, how likely-- as you're seeing the landscape right now, how likely is that to possibly be true?

STACY HAWKINS: It is a very likely possibility. I mean, we have lots of indicators of what the justices might do, particularly if the challenge is around Pennsylvania and the challenged ballots that might come in between the day after the election and Friday.

Already, three justices, Justices Alito, Thomas, and Gorsuch, have already expressed a willingness to disallow the counting of those ballots. It is expected that Amy Coney Barrett might join them in that. And so, you know, Kavanaugh or Roberts, and, you know, you have what you need for the makings of the Supreme Court deciding the outcome of the election.

Because we're talking about razor thin margins, those ballots that are received between November the 3rd and November the 6th might be the difference between Trump or Biden winning or losing Pennsylvania. Of course, you know, all of the election predictions suggest that it may not be necessary for Biden to win Pennsylvania in order to take the 270 electoral votes that he needs.

But assuming that Pennsylvania is, right, in contest and that it is needed, then we certainly don't want to see this go to the Supreme Court. And we saw in "Bush v Gore" in 2000 that the court gave it by a 5-4 majority to the Republicans. And we know that three of the justices on the Court, Chief Justice Roberts, Justice Kavanaugh, and now Justice Amy Coney Barrett, were all part of that "Bush v Gore" case on behalf of George Bush.

And so, again, we know how they feel about this, right? We know about their willingness to have the Supreme Court step in, override decisions of the state, and declare the victor of a presidential election in favor of one candidate over the other. And I don't think it's any mystery what candidate that might be.