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Supreme Court Allows Pennsylvania to Count Mail-In Ballots Received after Election Day; Pennsylvania Reports Highest Test Positivity Rate Since August; Today, Rep. Nancy Pelosi (D-CA) Set Deadline to Approve Relief Deal Before November 3. Aired 11:30-12p ET

Aired October 20, 2020 - 11:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

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[11:30:00]

JOHN KING, CNN INSIDE POLITICS: A major Supreme Court decision just yesterday, the Supreme Court ruling 4-4, Chief Justice John Roberts siding with three liberal justices to allow Pennsylvania to count votes past Election Day.

The election law expert, Rick Hasen, summed the implications of this perfectly, says, quote, if you thought the stakes of a Barrett confirmation couldn't get any higher, they just did. Rick Hasen is also professor of law and political science at the University California, Irvine. He joins me now.

And, Rick, you make this point, right now, the court only has eight justices, it is 4-4. Chief Justice Roberts essentially saying Pennsylvania can count ballots even if they come in after Election Day for a few days, he says, that's okay, this ruling says, and if the postmark is not completely legible.

How significant is this in what we know will be one of the big key presidential battlegrounds?

RICK HASEN, PROFESSOR OF LAW AND POLITICAL SCIENCE, UNIVERSITY OF CALIFORNIA, IRVINE: Well, it's significant in two respects. One is it affects what's going to happen on the ground in Pennsylvania. It means that people have a longer time to get their ballots in. Those who wait until the last minute will have a better chance of getting their count, although I urge everyone to vote as early as possible.

But it also has larger implications in terms of what it means for if there's any post-election litigation. It shows a court that's really closely divided. And it shows that if Judge Barrett is confirmed next week, as she is predicted to be, that she could be the deciding vote. And if she sides with the conservatives, that means other things that Democrats might try to do to extend deadlines won't be as successful.

KING: And so let's walk through that in terms of what types of cases are most likely going to reach the Supreme Court either just before or after the election, when Justice Barrett could be on the bench, and you would 6-3 then. So even if John Roberts sided with the liberals, there would be 5 conservatives. What types of cases in terms of their impact on the count or when the count must be completed or when ballots get tossed out, what are you looking at as most significant?

HASEN: So what's happening right now is a kind of winding down all of the pre-election litigation. There are still a few petitions about -- one about curbside voting at Alabama, one in Wisconsin about the -- extending deadlines as well.

Those cases are going to end. But if it's a close election and it comes down to an election contest or a recount in a place like Pennsylvania or a place like North Carolina. You've got this weird configuration in those states here you've got a Democratic-dominated state Supreme Court, a Republican legislature, they might disagree about what the rules are.

And this opinion from Pennsylvania or the lack of an opinion from the court but the close division in the case for Pennsylvania, as it signals that the court might side with Republican legislatures over Democratic Supreme Court over any post-election litigation.

KING: And you raise a fascinating issue there because legislatures versus state Supreme Courts, in the sense that the Supreme Court traditionally has followed the Constitution, which says, states administer their elections, therefore, if this has been settled at the state level, we're going to leave it there, unless it's a voting rights issue, some big federal issue.

Do you see a path to sort of go into new ground for the Supreme Court?

HASEN: Right. So it gets really arcane, but the idea is that the Constitution says that state legislatures get to set the rules for presidential elections. And the argument that the Republicans made in the Pennsylvania case is that when the state Supreme Court in Pennsylvania came in and extended the deadline in line with the state's Constitution, it was taking power away from the state's legislature.

It's a radical theory but it's one that we don't know because the justices didn't write, but it's one that might be attracting the four most conservative justices on the Supreme Court. And that could really change the kind of breath of what a state Supreme Court would be able to do in any post-election litigation.

KING: Fascinating politics, also fascinating legal ramifications coming in the days and weeks ahead. Rick Hasen, grateful for your time today. I'm sure we'll be checking in as these cases line their way through the court. I appreciate it very much.

And just today, early voting in person or early in-person voting beginning in Hawaii, Utah and in battleground Wisconsin.

[11:35:04]

By Thursday night's debate between President Trump and Democrat Joe Biden, in-person early voting will have started in 42 of 50 states. Nationwide, more than 32 million ballots already cast. That's according to a survey of election officials by CNN, Edison Research and by Catalyst, Catalyst, a data company that provides data analytics and other services to Democrats, academics, a non-profit issue advocacy organization.

With me now is CNN's Kristen Holmes, who is tracking all this. Number one, the raw numbers, Kristen, are off the charts. So we're watching people vote in record numbers. And I was just talking about with Rick, we're also watching these legal cases, which are going to complicate things.

KRISTEN HOLMES, CNN NATIONAL CORRESPONDENT: Well, that's right, John. And we've been watching these legal cases unfold. The fact that we're so close to the election and there is still so much up in the air, it doesn't give a lot of confidence to voters. And that's why you're seeing a lot of them go early in person. They don't want to take any chances. They know there is some sort of idea that this could change before the election. And they don't want to risk it.

Now, I do want to talk about those numbers in Florida because we have now seen what yesterday's first day of early voting looked like. And it was over 350,000 people who showed up.

Now, I talked to two election officials in the state earlier today. They said they were absolutely swamped. They have never had any sort of a turnout like that before.

But just to touch on Wisconsin, because this is one of these really interesting states that we're going to be watching, not only on the election night but potentially in the days afterwards. This is a state in which they cannot count those ballots until the morning of. Those election officials cannot start feeding the ballots into the machine until 7:00 A.M. on Election Day. So that will be interesting to watch.

The other thing we're watching is for turnout in Wisconsin for early in-person voting. The reason being that Wisconsin is one of the states that makes it the absolute hardest to cast an absentee ballot, they have the strict I.D. requirements, they also require a witness signature, something we know has been very hard for people during the pandemic. So we want to see if people are actually going to show up and early in-person vote today. John?

KING: We'll keep an eye on that as well. And, Kristen Holmes, I appreciate you tracking this every day for us, important to tell people out there we may not know on election night the winner because of all these mail-in ballots, because of Wisconsin and other states are going to take some time, absolutely nothing wrong with that. Take your time, count the votes, there are people from both campaigns watching. It can be done without any shenanigans and it can be done right.

Kristen Holmes, grateful, you're helping us through this every day.

When we come back, President Trump, the first lady off to Erie, Pennsylvania today at a time the commonwealth has a big surge in COVID cases.

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[11:40:00]

KING: President Trump and the first lady head to Erie, Pennsylvania today for a campaign rally. This just as the governor says now is the time to double down on fighting the coronavirus.

The commonwealth has been averaging, you see it there, more than 1,000 new cases every day over the past two weeks. 21 of Pennsylvania's 67 counties report a positivity rate of greater than 5 percent. The statewide positive rate is 4.3 percent. That's the highest there since early August.

Joining me now is Dr. Rachel Levine, Secretary of Health of Pennsylvania. Dr. Levine, grateful for your time today. It's interesting, some of the data you provided the show, people are getting new symptoms in your state, 50 percent reported going to a restaurant within 14 days prior to the onset of their symptoms. 14 percent said visited a bar, 13 percent, a gym, 8 percent, a salon or barber shop. People went to other businesses as well.

That 50 percent number though, that strikes me as if I'm in your job, do we need to do something about this. Fair question?

DR. RACHEL LEVINE, SECRETARY OF HEALTH FOR THE COMMONWEALTH OF PENNSYLVANIA: Well, always a fair question. So we do have mitigation orders in place for restaurants and for bars at 50 percent indoor capacity. And so, we are watching those numbers very closely. It's really restaurants, bars, businesses, et cetera, but it's also small gatherings, as has been noted nationally, that family and friends gathering together where people might relax, their use of masks and social distancing, that's also a risk factor.

KING: Also a risk factor.

I also want to look at the trends right now in terms of percentage of patients on ventilators, 87 patients in recent days on ventilators in your state up from the previous seven days. That's trending in the wrong direction, obviously, because if you are on a ventilator, you have a more serious case. What is your sense? You've been at this, I'm sure you're exhausted, at least for seven-plus months now dealing with this. What does that ventilator number tell you about the current trajectory in the commonwealth?

LEVINE: Well, we are seeing more patients hospitalized in Pennsylvania now than we have seen for a long time. Our numbers have doubled over the last month. We have well over 800 people in the hospital, about 10 percent on a ventilator. That is much higher than it was before, but it's not as high as it was in the spring when we had well over 3,000 patients in the hospital and up to 30 percent of those were on a ventilator.

KING: And so at this moment, you're trying to deal with a resurgent virus, the president of the United States is coming for a rally in Erie tonight.

[11:45:05]

And listen to him here in Nevada the other. He says Pennsylvania is not part of the solution, it's part of the problem.

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DONALD TRUMP, U.S. PRESIDENT: Pennsylvania has to open. I mean, you know, we have -- we have places, and sometimes they're open but they're partially hope, they're not open like they should be. Get the places open. Let's go. Let's go.

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KING: Does that complicate your job and the governor's job in that the president has pretty deep support in the commonwealth of Pennsylvania? When he is yelling every day open, open, open, does it make it more complicated for you to tell people we're at a bad moment we need you to be extra careful?

LEVINE: Well, as the governor and I talked about yesterday, and you have been mentioning, we are in our fall resurgence, as is most of the country, particularly the Midwest and the mountain west. There are three ways to deal with a pandemic. You can work to contain it, you can work to mitigate the spread and then we're all be hoping for a vaccine when it's determined to be safe and effective.

And so we need our current moderate mitigation orders in place, and most importantly we need everyone to unite together. We are all interconnected in terms of fighting this virus. And we need everybody to work with us to wear masks, social distance, wash their hands and to really bind together to fight this virus and stop its spread.

KING: I wish that last part was not so controversial. It certainly shouldn't be. But as you well know, it is for some reason. I guess it has to do with the fact that we're in an election year, part of that. Dr. Levine, grateful for your time and insight. Best of luck in the days and weeks ahead. I know you're dealing with this in a difficult time. Thank you.

Up next for us, it is deadline day here in Washington for a coronavirus stimulus deal.

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[11:50:00]

KING: Today is the deadline for a coronavirus stimulus deal. And the president he is willing to anger Republicans and go big. The talks that matter are between the House speaker, Nancy Pelosi, and Trump treasury secretary, Steven Mnuchin. They're speaking again this afternoon.

Speaker Pelosi says differences need to be resolved by today if there's any chance of getting a deal passed by Election Day. Senate Republicans say the price tag being discussed in those House negotiations, way too big.

But the president says if he can make a deal with the House, he believes he can get the GOP Senate to go along.

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UNIDENTIFIED MALE: Mitch McConnell isn't exactly on board with those negotiations.

TRUMP: Well, he'll be on board if something comes.

UNIDENTIFIED MALE: Senator Thune says he doesn't want to even go close to 2 trillion.

TRUMP: Well, we'll have to talk to Senator Thune.

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KING: CNN's Lauren Fox is up on Capitol Hill for us. Lauren, before the president would have to pick up the phone and disappoint Mitch McConnell and John Thune, he'd have to get a deal with Nancy Pelosi. Where are we?

LAUREN FOX, CNN CONGRESSIONAL CORRESPONDENT: Well, essentially, they are going to speak again today at 3:00. This is the day, this is the self-imposed deadline for the House speaker, Nancy Pelosi.

But I will tell you, there are a few grim signs on Capitol Hill about where negotiations stand. I'm told that yesterday, appropriations staff from both the Senate and House met to try to craft some kind of language in areas where Mnuchin and Pelosi thought that they were moving closer together. I am told that that meeting did not go well.

And, essentially, there are a lot of outstanding questions about what Mnuchin and Pelosi have even agreed to at this point. I am told from aides on both the left and right that, essentially, there is confusion about exactly where the negotiations stand.

I'm also told that while this meeting is going to happen today, Senate Republicans are not optimistic that a deal will be reached, and certainly even if one is reached, it's going to be a deal that they can get behind, a lot of Republicans, conservatives saying that this price tag, John, is just too high.

KING: Too high, they say. We'll continue tracking it. We'll see. A lot of people would like help from Washington. Lauren Fox, thank you so much.

Up next for us, a new study on how classrooms can reduce the spread of the coronavirus.

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[11:55:00]

KING: A new study out today says there are some basic ways to keep kids safer in schools, things as simple as changing desk placement, opening windows and providing glass or plexiglass screens around desks. The study says all of that can reduce transmission of the coronavirus.

CNN Senior Medical Correspondent Elizabeth Cohen is here to walk us through these findings. Elizabeth?

ELIZABETH COHEN, CNN SENIOR MEDICAL CORRESPONDENT: John, this is so interesting. These physicists at University of New Mexico kind of invented a simulated classroom to see what would happen. Let's take a look at the classroom that they simulated here. You've got a teacher, you've got nine students, everyone is almost eight feet apart, so well beyond the six feet that's recommended.

I want you to put your eye on that poor kid in the middle because I'm going to reference that child in a minute, look at that in the middle. So what we know is these are nine students and one teacher, nearly eight feet apart from each other. This is what they found helps, opening the windows, turning on either the A.C. or heat to get some circulation and shields attached to the front of the desk. It can be plastic, it can be glass, but some kind of shield.

Their recommendations are interestingly enough keep people away from the A.C. or the heat outlets. Apparently, particles can kind of congregate there, and also reduce the middle seats. That child that was in the middle that I pointed out towards, that child could transmit to every other child whereas if you're on the periphery, you have fewer people to transmit to.

But I think sort of the bottom line is that, apparently, you can transmit further than six feet apart. We don't know if you can get someone sick, but, apparently, the particles do reach further than six feet, so these are some things that can be done to try to help that situation. John?

KING: I'm sure parents around the country will be fascinated to take a look at that. Elizabeth Cohen, thanks so much, important.

COHEN: Thanks.

KING: And welcome to viewers in the United States and around the world. I am John king in Washington. Thank you for sharing a very busy news day with us.

Americans have a new number to remember, two weeks to Election Day, 220,000 American deaths. The country now in the early stages of another coronavirus surge. Scientists warning this version will be deadlier as more and more head to family gatherings as well cold and the holidays.

[12:00:07]

The president treks to Pennsylvania today.