To call or too early to call, meaning theres still a significant amount of vote needed to be counted to make a prediction. Seven of those states are the battle grounds that youve heard so much about, pennsylvania, michigan, wisconsin, north carolina, georgia, nevada and arizona. Kind of let everyone know it wasnt going to be election day, it may be election days or election week. Thats exactly where we are right now. Lets begin with tom costello. Hes keeping his eye on that vote count. Tom, good morning. Good morning. I think its worth repeating and weve been saying it for weeks on the today show, on nbc night live ne nightly news, the vote will take days to count. We are looking at the highest voter turnout we believe in a century, about 157 votes and no state declares a winner on le Election Night. They all have their own processes and deadlines to do this. Pennsylvania right now, the governor says they still have about a million mailed in ballots to count. They paused overnight. Absentee ballots postmarked by election day can arrive by friday and be counted. The secretary of state has insisted despite what the president has said that all votes will be counted in pennsylvania. In georgia some key counties in georgia paused counting overnight. There were some problem with some vote tabulation issues in and around the atlanta area. Also there was a water pipe that burst in the state farm arena, where theyre tab lat tabulatin. At least 50,000 votes there were paused. Atlanta will pick up again today. This may take time on georgia. Keep in mind this is very much still a work in progress. In arizona, voters have five days to correct their signatures on the ballots. They will not finish count bein the vote until november 10th. We could get more data tonight. Nevada mailed in ballots in nevada post marked by election day can still be counted. Nevada Officials Say there will be no final tab until thursday and specifically theyre waiting on democraticleaning clark county for nevada. Were going to be watching that closely. And then we look at north carolina. Ballots postmarked by election day can be counted. We need to also make the point there are concerns about specifically pennsylvania and michigan and wisconsin and what their laws, what their rules allow for county ballots. All of those legislatures set the rules. All of those legislatures are controlled by republicans. So its important to note when the president is concerned about whats happening in those states, those are republican legislatures setting the rules. In 2008 it took two weeks to finalize the vote and in 2016, the president knows michigan wasnt formally called and confirmed until two weeks after election day. Again, these things take time. Back to you. Michigan had the narrowest margin in 2016. I dont know, some of these other states might give it a run for its money this time around. Some people are waking up and saying i thought arizona was called. There are some networks and news organizations that are calling states but we are taking our time. Chuck is really the expert on this. But the fact of the matter is nbc news has its open decision desk. We do not communicate with them. They make their own calls and they are very, very careful. So you might see other news organizations say calling florida well before we did. We have not called arizona for joe biden. Other networks have. This is just the way weve decided as a network we will proceed with caution. We are not concerned about being first. We are concerned about being right. And i think thats a lesson that we take very much to heart. Well, its a lesson we learned the hard way as a network in 2000 when we called florida and we had to pull it back. You dont want to pull back a call like that. You dont want to pull back the presidency. Frankly, you look at georgia. We didnt call it, a lot of other folks tried to directionally call georgia early that night and it was just our folks who spent a lot of time with these models were like not touching that one with a tenfoot pole. Trump may still win georgia, but it was not correct to ever characterize that as that somehow was headed in his direction yet. Were proceeding with an abundance of caution and just going where the facts and votes are and well continue to do so. During the speech overnight, the president vowed to go to the Supreme Court to dispute the election count if it comes to that. Lets bring in justice correspondent Pete Williams. Hes a veteran of those wars, as is and last jeremy bash. Jeremy was part of the recount in 2000 in florida as a young lawyer for al gore, the democratic candidate. Pete, ill start with you. We talked about this before. I said if it gets to the Supreme Court. The fact of the matter is there already are cases pending before the Supreme Court. If the electoral vote end up being close and if pennsylvania could make the difference, then a lawsuit already there would be the one most likely to get the Supreme Court involved. The republicans object to the decision by pennsylvanias state Supreme Court, it ruled in september that because of the pandemic and Postal Service delays, mail votes will be counted if they arrive by friday of this week, three days after the polls close. So the republicans first asked the Supreme Court to put that ruling on hold. That failed on a 44 vote. Then the republicans asked for a fullup appeal and asked that it be heard immediately. The Supreme Court said, no, were not going to take it right now but that appeal is still waiting there waiting for the Supreme Court to decide whether to take it up at all. In the earlier two round Justice Amy Coney barrett did not vote. If the case does come back to life, shell undoubtedly face pressure from many quarters to recuse. The justices will no doubt have to ask themselves this question. Having turned down the republicans twice before, before it was known whether pennsylvania could be critical, how would it look for the court to then step in and take a grant and grant the republicans request to take that case on a fast track, knowing that a ruling could decide the election for President Donald Trump. The Supreme Court fell stung by the criticism that followed bush have. Go bush v. Gore 20 years a. Those ballots have to be post marked by election day actually they dont. Is that right . Thats part of the problem here. No, they dont have to be post marked. They either have to be post marked or there has to be proof that they were mailed after the election after election day. Thats been one of the republicans objections now, weve talked to Election Officials and the Postal Service in pennsylvania and asked them do you postmark all the ballots . In some places ballots have prepaid postage and in that case they probably dont go through pete, are you telling me somebody could put a ballot in the mail today as long as it gets there by friday . Thats what the republicans object to. Now, of course you have to first ask yourself this question could the Postal Service deliver it by friday if you put it in the mail today . Thats a question. But, secondly, the way the state Supreme Court ruled, they said that you must count the ballot if it arrives by friday if it postmarked and unless there is some indication that it was sent after election day. Then you wouldnt count it. Thats one of the sort of bones of contention here. But the majority of the ballots are those that of course were put in the mail before or on election day. Well, this is what happens when you unleash the lawyers. Heres another one. Jeremy bash, jeremy, i already gave your resume there. So obviously every state is different, every states rules is different. This is a different year, its 20 years later, but walk us through what these recount fights really amount to, what it really cops down mes down to. We all remember the hanging chad in florida. Ly ground of dispute here in 2020 . The first step is all the votes have to be counted. The big difference between florida in 2000 and whats happening today is that in florida in 2000 the litigation was over the recount. The Supreme Court stepped in and said stop the hand recount of the votes. Here in 2020 in all of these states, most of the votes havent even been counted. As chuck and kasie and you guys walk through where the votes are to be counsted. Assuming theyre all in, people can say there were problems at voting places or problems with the ballots. There are multiple ways to challenge what happened at the voting places. I have to say looking at yesterday, there were very few problems, no evidence of fraud. Theres no basis i can see right now for a candidate going in and challenging legally the validity of what happened yesterday. Jeremy, were you up at 2 20 in the morning when President Donald Trump spoke and he mentioned he thought the eceltion had been stolen and he s going to take it to the Supreme Court . Im curious what your thoughts were . Frankly, thats outrageous. First of all, theres no basis to go to court, let alone the Supreme Court. We all knew because of covid there were going to be mailin ballo mailin ballots. If theres election controversy, maybe that gets litigated in the courts but i dont think thats going to happen this year. Pete and jeremy, thank you so much. We have a lot more to cover ahead. Well see what is going on there, including the votes are still being counted in some key states. And how are voters reacting overnight . This is a moment where weve seen a lot of tensions on the streets, weve seen boarded up store windows but weve had a good morning you guys. 7 43. Its the morning after the election. The race, as you can tell by our big board right there still unsettled. President donald trump and joe biden split. Its 224 for biden, 213, each trying to get to 270. A lot votes remain to be counted. Claire mccaskill and rich lowrie, editor of the national review, both of them joining us and have been up all night as well. Rich, let me start with you. You look at the map. There were a lot of surprises for the president , pleasant surprises, starting with florida early in the night. He took a commanding lead in florida, which some people thought was more competitive than it ended up being. Trump overperformed almost everywhere and in florida he had a very robust team working it really hard. This is one of the things underappreciated by trump. Everyone was focusing on the various distractions and the gaffs, but there was a real concerted effort to build a very serious get out the vote operation that we now know was very effective and had considerable proficiency. And its gotten him on the cusp of reelection. Now, as were seeing, you know, in realtime here, his leads in the blue wall states, hes going to need at least one of them and perhaps more are vulnerable to the latearriving, latecounted absentee and mailin ballots. So its up for grabs now. But he wouldnt be here if he and his team hadnt done an incredible job turning out their voters and founding more of them. There are a lot of unpleasant surprises i think you could say for biden. I think he was expecting to take so some states that ended up going red. Assess what you see on that big map right there. Well, if you look at that map, there really arent any states that have been flipped by either candidate yet. Except for if we want to count arizona, that would certainly be a flip for joe biden. But nevada was a democratic state. So if we end up with nevada, thats not a change. It really still comes down to the states that a credit to the Biden Campaign they focused on, those three states, wisconsin, michigan and pennsylvania. Lets just assume that the vote tallies turn out the way people are expecting at this point. The irony is that donald trump is going to lose the presidency the exact way he won it four years ago. And if he takes it to the Supreme Court and the Supreme Court validates it, that will give joe biden a lot of credibility because everybody in the country knows this is a republican Supreme Court right now. Well, rich, how do you see it . Do you think this is one thats going to be resolved by voters on the map . Tight, might take a while but its going to happened the Old Fashioned way . Or do you think we may be looking at one of these drawnout, recount potentially lawsuits that could go to the court . It depends. And the scenario people have been focused on from the beginning and still may play out here is an extremely narrow result in pennsylvania where pennsylvania is a Tipping Point state where potentially the result is determined by a segment of votes that will be under a cloud, and that, as Pete Williams was describing, that would be latearriving absentee ballots that are being counted because the pennsylvania Supreme Court changed the rules in september. If that makes it up to the Supreme Court, that pennsylvania ruling is really vulnerable. There are three certainly probably four maybe five maybe even six if it comes to it u. S. Supreme Court Justices who i think would believe it was improper for the pennsylvania Supreme Court to do that. But thats, you know, thats only if its really close in pennsylvania, but you cant rule it out. And in fact, i believe the court left it so those latearriving ballots would be segregated in the event that the court took up that issue. But i know there was a little confusion around the table about that. I think rich, im sure youre familiar with it, i think youre a lawyer, too, that the ballots have to either be postmarked election day and can arrive no later than friday or there just has to be no evidence that they were sent after election day. So the bottom line is you cannot send a ballot after election day under any ruling of the court and expect it to be counted. Correct . Right. Im not a lawyer but my understanding well, i just appointed you one. I dont know whether thats an honor or an insult. But some of the potentially prepaid envelopes dont have a postmark. Pennsylvania said were going to presume that they were sent prior to the election, unless theres evidence otherwise. So the nightmare scenario here for everyone and especially for chief Justice John Roberts and if theres someone who maybe didnt get a lot of sleep last night its john roberts, because i think he ducked this pennsylvania case when it came up before the election because he kind of figured, what are the odds its all going to come down to pennsylvania, looks like biden is going to win and we wont have the courts fingerprints on this at all, which is what he prefers because hes a real institutionalist and he cares about the reputation of the court. But it could come back to the Supreme Court with everyone knowing that effectively the court would decide the outcome of the election, which would be very bad for the court and be very bad for the country and for me it would be an indication that john roberts and the courts grasped it prior to the election. Senator mccaskill, you are a lawyer, are you not . We may just throw that around today. The legal term for it is a hot mess. Yeah, its a hot mess. So there are several things that would throw this into this category of uncertainty around the law. And the ballots in pennsylvania. First, pennsylvania would have to be determinative. If biden wins wisconsin and michigan and nevada and arizona, he doesnt need pennsylvania. So pennsylvania is not a key. If pennsylvania turns out to be a key, then this is an issue of the burden of proof, savannah. The way the pennsylvania Supreme Court found the case was there is a presumption that the ballot was sent in a timely basis. Thats the essence of what the legal challenge would be. Is that burden of proof, should it be shifted to prove you didnt mail it as opposed to having to prove that you did mail it before election day. Or on election day. We want to check on those numbersin pennsylvan in numbers. Fishs first you have numbers coming in from wisconsin . Look at this. We now only think there is 100,000 votes remaining we have biden up 20,000 votes so his lead has basically doubled. This is shrinking. Its going to be less than 1 but i will tell you this, the question will be is what you guys are going to ask, what are the recount procedures . Well, luckily, we have those. Of course you do. And i will get that for you shortly. Theyre in here. So heres the georgia procedure. No automatic recount. Half of 1 . Thats the only way you have to be within that to even be able to ask. If it more than. 5, they wont do it. All right, our next state is wisconsin. No ought mat beiautomatic recou. You can petition when it is within 1 of the vote. It was less than 1 of the total vote of wisconsin. The idea of a recount in wisconsin looking pretty high. Pennsylvania, the more writing you see and the less numbers you see just shows look at this one. Petition for a recount. Three electors need to request one. Anyway, there is an automatic recount within half of a percentage point. Thats the most important thing to go from there. Then clearly there become some different data. Check this out. You want to see how long we could end up here . After thanksgiving. If its down to pennsylvania, were going to be waiting until after thanksgiving, if the vote is close. We dont know the vote is going to be close. Nevada, no automatic recount but 1 and you can get a recount. Let me give you north carolina. 5 or 10,000 votes. Let me tell you, 10,000 votes i was telling you is probably going to be the margin. Its going to be right around 10 for biden coming up short. Ill be curious to see we could have recounts in four or five states. Its like Florida Times five. It was the nightmare weve all been worried about. What if florida was more than one state . Here we are. Lets take another pause. We need an election da