The Blog

2020-

2020-12-07 a
AN ELECTION THAT WILL LIVE IN INFAMY I
“The core constitutional question that Ken correctly pointed to is clearly state legislatures have the power before the voters vote to pick the electors.”

Dershowitz Says Supreme Court May Rule to Let Legislators Pick Alternate Electors

Attorney Alan Dershowitz said on Sunday that he believes the Supreme Court may get involved in adjudicating on whether state legislators have the power to pick alternate Electoral College electors who would vote for President Donald Trump if legislatures determine there was voter fraud, even after an initial slate of electors has cast its votes on Dec. 14.

Dershowitz made the remarks in an interview with Fox News in which he was first asked about what he thought of claims made by Trump attorney Rudy Giuliani, who said there was a pattern of fraudulent activity that swayed the election in favor of Democrat Joe Biden.

“There certainly is probably cause for investigating and looking further. Giuliani has made very serious accusations. The question is which institution is designed constitutionally to look into it? Is it the state legislature? Is it the courts? Is the clock running in such a way that there won’t be time to look into this?” Dershowitz replied.

His reference to time running out presumably refers to the Electoral College Dec. 14 meeting, at which electors cast their presidential votes.

... “The core constitutional question that Ken correctly pointed to is clearly state legislatures have the power before the voters vote to pick the electors.” he said. “The unanswered constitutional question is do they have the powers—state legislatures—to pick electors after the voters vote if they conclude that the voters’ count has been in some way been fraudulent or wrong?”

“That is a constitutional question we don’t know the answer to, and the Supreme Court may get to decide that question if a state legislature decides to determine who the electors should be and changes the electors from Biden to Trump—that will be the key constitutional question,” Dershowitz said.

Asked if he thinks that, if it decides to take up the case, the U.S. Supreme Court would be likely to rule that it was unconstitutional for Pennsylvania to extend the deadline past Election Day for receiving mail-in ballots, Dershowitz replied, “I think so.”

“I think that there’s a 5-4 vote now in the Supreme Court and Justice Alito seemed to suggest that that would cancel out the votes in Pennsylvania that were received after the close of Election Day,” Dershowitz said. “Whether that’s right or wrong, that’s the way I predict the Supreme Court would decide the case if it decided to take the case.”

... The Amistad Project of the nonpartisan Thomas More Society released a study (pdf) on Dec. 4, making the case that the only constitutionally set date in the election process is Jan. 20, when the next president of the United States will be sworn in. All other dates, including the “safe harbor” deadline, the Electoral College vote on Dec. 14, and even the congressional vote count on Jan. 6, are dates set by federal law, which the document argues are “arbitrary” and founded on obsolete concerns.

The study also argued that there is “significant flexibility and precedent in U.S. law for changing the date that electors are appointed, changing the date electors convene to vote, and changing the date electors have their vote certified by Congress,” which, if acted upon, could provide more leeway than the current deadlines for Trump to prove his case of election fraud. (read more)

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