WASHINGTON, D.C. (Texas Insider Report) — “The president elect doesn’t get named as 'president elect' until he has at least 270 state certified electors, or until his opponent concedes – neither of which has happened as of now,” said high-profile lawyer, legal scholar and former Harvard law professor Alan Dershowitz, who is known for his scholarship of the U.S. Constitutional Law and his advocacy of civil liberties.
“I think he is entitled to describe himself as the 'president elect.' At the moment he’s won 305 or so electoral votes – and President Trump is entitled to dispute that. That’s freedom of speech. That’s politics,” said Dershowitz (right.)"Neither is entitled as a matter of law or constitutionality to say that they are the 'president elect'.
“We’ve never had anything like this before, because we’ve never had computers play such a major role in the election … The big challenge is whether or not there were computer malfunctions that turned many, many thousands of votes away from Trump and toward Biden,” Dershowitz said. "If that turned out to be true – and again, I haven’t seen the evidence, I’ve just heard the lawyers talk about it – that would change a lot of things.
“And, of course, the American public would be very upset because they’ve been told by the networks who the winner is already.
"Remember, the networks don’t declare the winner, legally and constitutionally,” said the Constitutional Law and civil liberties advocate.
Dershowitz, who served on Trump’s legal team during the Senate impeachment trial earlier this year, said he believes the Trump legal team is seeking to have the election forced into the House of Representatives by not letting Biden reach the 270 Electoral College votes required to secure the presidency.
Trump’s lawyers, Dershowitz noted, are counting on a constitutional provision that moves the election to the House of Representatives if there is no definitive winner in the Electoral College by mid-December.
In the House of Representatives, Republicans have a 26-23-1 state delegation majority.
One possible way the Trump campaign can legally get electors not to vote, is if the election challenges proceeding through the courts haven’t been resolved. In such an instance, some of the state's Secretaries of State may refuse to "certify" their state's vote by mid-December, Dershowitz said.
“That will be challenged in court. And that will be a mess, it would create a constitutional crisis of a kind we haven’t had before,” he said.
“I understand why the Trump legal team is trying to have the the election thrown into the House of Representatives. That’s their constitutional right, and I can’t condemn them for using every possible legal recourse. That’s what lawyers do.”
“I think that the lawsuits, in the end, will not bring about a reversal of fortune for Donald Trump,” he added. “I think that on January 20th, 2020, Biden will be elected president and inaugurated as President of the United States – but I have no criticism of the Trump team for fighting, and battling, and trying everything they can legally, ethically, constitutionally politically, to try to preserve his presidency.”
“I think that the lawsuits, in the end, will not bring about a reversal of fortune for Donald Trump,” he added. “I think that on January 20th, 2020, Biden will be elected president and inaugurated as President of the United States – but I have no criticism of the Trump team for fighting, and battling, and trying everything they can legally, ethically, constitutionally politically, to try to preserve his presidency.”Dershowitz: Trump May Seek to Deny Biden 270 Electoral Votes, Put Election in Congress
Although Trump’s campaign or legal team haven’t publicly described what specific kind of strategy they are employing, according to Dershowitz there are two kinds of lawsuits that have been filed by the Trump campaign in several states.
“One I call the kind of wholesale constitutional lawsuits, like in Pennsylvania, where they’re challenging legally, whether all the votes that came in after Election Day have to be discounted, even if they were voted, even if they were submitted before Election Day,” said Dershowitz, who taught at Harvard Law School from 1964 through 2013.
“That’s a constitutional challenge based on Article II of the Constitution. It’s wholesale and involves many, many thousands of votes. And that has a good chance of succeeding.
“The other challenges are retail challenges. They are case by case in a few people who shouldn’t have been eligible to vote, vote. Was there fraud? Was there a computer glitch?
"Those are much harder, because those require actual trials, witnesses evidence, and they will take time. I it will be very hard for them to succeed,” Dershowitz said.
“That’s a constitutional challenge based on Article II of the Constitution. It’s wholesale and involves many, many thousands of votes. And that has a good chance of succeeding.
“The other challenges are retail challenges. They are case by case in a few people who shouldn’t have been eligible to vote, vote. Was there fraud? Was there a computer glitch?
"Those are much harder, because those require actual trials, witnesses evidence, and they will take time. I it will be very hard for them to succeed,” Dershowitz said.
He said he is aware that Trump’s lawyers have spoken about potential computer anomalies, which if they proved to be true, could trigger a “major disruption and shift.”
“What he’s trying to do is to deny Joe Biden 270 votes by challenging in Pennsylvania, Georgia, in Nevada, in Michigan, in Arizona,” Dershowitz said, adding that not allowing Biden to reach 270 out of 538 votes would eventually force U.S. House of Represenatives state delegations to vote, where Republicans have a 26-23-1 state delegation advantage over Democrats.
“If he can keep the Biden count below 270, then the matter goes to the House of Representatives, where, of course, there is a Republican majority among the delegations of states. You vote by state if it goes to the House,” said Dershowitz (at right, defending President Donald Trump during the 2020 impeachment trial in the U.S. Senate.) “He’s trying to follow the playbook of three elections of the 19th century.”Dershowitz noted that a number of things would have to align perfectly for Trump to win under such circumstances.
“You need a perfect storm for it to work. You need to get enough states, enough state attorneys general, or state departments, or whoever, secretaries of state or governors that are Republican, that legitimately refuse to certify the results because they’re under challenge on the day the Electoral College meets by statute,” Dershowitz said.
