Harvard Law Professor emeritus Alan Dershowitz continued to push the theory this week that the U.S. Supreme Court could very well still overturn the results of the 2020 election and hand Donald Trump a second term in office, a notion that has been dismissed by most to all legal experts.
In an interview with pro-Trump journalist John Solomon—who was recently let go as a Fox News contributor after the network’s “Brain Room” warned anchors that his work could not be trusted—Dershowitz claimed that the Trump campaign’s efforts to prevent states from certifying their election results could somehow end up reaching the Supreme Court which he believes would rule in the president’s favor. (Solomon has still appeared on Hannity over the last few days.)
“The clock is a double-edged sword in this election because if they don’t have enough time but if they can put forward a sufficiently strong case then they may be able to get some Republican Secretaries of States or legislatures to say, ‘Look, we just don’t have enough time to certify these electors’ and if they can bring down the number of electors, 35 [to] 37, from the 305 and bring it down to 267 or 268 then the election goes to the House, where the Republicans win,” the famed criminal defense attorney said.
“If that happens, then yes, it will go to the Supreme Court,” Dershowitz said. “I think at least under the Constitutional challenge, the Article 2 challenge in Pennsylvania, they have a pretty good chance of winning.”
The idea appears to be to drag out legal challenges and delay certification of the vote in enough states past the “safe harbor” deadline.
There’s a federal statute that means Dec. 8 will function as what’s known as the “safe harbor” deadline. Occurring about a month after Election Day, Dec. 8 is the deadline for final resolution of all election disputes, including court challenges. It is the final date on which slates of electors must be chosen by states for submission to Congress.
If things aren’t settled by then, Congress is under no obligation to accept the validity of electoral votes submitted by states. Instead, the Congress will gain legal authority to determine the winner in any state that has not resolved its election drama by the deadline.
One specific issue Dershowitz is referring to (the “Article II” challenge) is the Pennsylvania Supreme Court’s decision allowing the state to accept mail-in ballots that were sent before or on Election Day but which were not received and counted until up to three days later. Under the decision, even ballots without a postmark that were received three days after Election Day were counted unless it could be shown they were sent later than Nov. 3.
Dershowitz also appeared to refer to the equal protection argument Rudy Giuliani recently made in federal court. Giuliani and the Trump campaign have said they “intend to show that a substantial portion of the 1.5 million mail votes received in the Defendant Counties were counted in violation of Pennsylvania law (including the exclusion of Trump and Republican watchers from the canvass of mail ballots and approving mail ballots which did not comport with Pennsylvania’s signature, date, and other requirements, see 25 P.S. §§3146.6(a), 3150.16(a)).”
“Plaintiffs will also show that Defendants’ conduct was part of an improper scheme to favor Biden over Trump by counting improper votes in violation of the Equal Protection, Due Process, and Electors and Elections clauses under the Constitution and Civil Rights Act,” the filing said.
The federal judge in the case did not exactly warm to the idea and cancelled an evidentiary hearing after Giuliani’s performance in court.
Dershowitz clarified that in order for these cases to reach the Supreme Court (Pennsylvania Republicans brought an emergency application to Justice Samuel Alito already on the Article II issue), the Trump campaign would either have to show that the disputed ballots would exceed the difference between the winning margin and losing margin or provide “hard evidence” of voting irregularities or fraud.
But Pennsylvania election officials have already said that only about around 10,000 ballots arrived after Election Day, so that’s not an avenue for Trump winning (Joe Biden is ahead by about 80,000 votes in Pennsylvania). And election officials across the nation have already said that they’ve found no evidence of widespread fraud that could change the outcome, so it’s not entirely clear what issue Dershowitz thinks may reach the high court.
In summary, the theory seems to be that if this continues to drag out and Biden’s electoral votes somehow drop below the 270 threshold with the help of the Supreme Court, the final decision would wind up in Congress, where the election procedures would favor Trump.
Reacting to Dershowitz’s continued defense of the president, fellow Harvard Law Professor emeritus Laurence Tribe referred to his colleague as a “disgraceful shill.”
Dershowitz recently denied that he was working for Trump on election issues.
[image via YouTube/Just the News screengrab]
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