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

Epoch Times ^ | 12/07/2020 | Tom Ozimek

[SeekAndFind]

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 American public wants to know, is Giuliani correct or isn’t he correct. I don’t know whether we’ll find that out in time for the meeting of the Electoral College votes,” Dershowitz said.

Attorney Ken Starr, who also took part in the interview, said that a “bit of a nightmare” scenario has taken place in the form of claims of voter fraud relating to absentee and mail-in ballots and other irregularities.

“So what do we now do about it?” Starr said. “I think, to be honest, we’re running out of time, because the Electoral College meets on Dec. 14, so it’s going to take an extraordinary action by legislatures and so forth.

[Brian Griffin]

In 1872(?), women were told Amendment XIV gave them no voting rights whatsoever.

[Jim W N]

Not me. Trust the Lord, Bro. He’s got this!

[FreeReign]

It's not a "state right". It's the state legislators have a federal power.

Elections are a state power. Exclusively. States don't exercise federal power.

State legislators exercise federal power when they pick state electors. The power doesn't come from a state constitution. The power comes from the federal US Constitution, in Article II Section 1.

And there are other powers delegated to the US for elections.

[JohnBovenmyer]

>But can they change their mind after an election? After safe harbor? After the electoral college votes?

1) The rules the legislature established in delegating their power to an election were grossly NOT followed, annulling the delegation

2) The statue granting safe harbor specifically denies it where states are in dispute

3) In 1960 (in the era of the safe harbor/electoral college current schedule) the brand new state of Hawaii changed its electoral college slate. Twice IIRC. Final change came on 12/27 and was honored by Senate President Nixon in next week's Joint Session. Even though it went against him in a rigged election. So there is precedent under that law not to mention the larger item that statue can't amend the Constitution.

So the answer to all three is YES!

[lepton]

Thank you. I can’t imagine that Alan Dershowitz doesn’t know that the state legislators do not need the Supreme Court’s stamp of approval.

---

The problem is that the legislatures have people saying they don’t have the authority - that they gave it away when they gave the right to vote for the President to the people.

[Boise3981]

“No one doubt’s the legislature’s supreme ability to choose the method of appointing electors.” “But can they change their mind after an election?” Yes “After safe harbor?” Yes “After the electoral college votes?” No The word “may” is of the future tense and therefore the “may direct” part appears to have a remedial intent in my opinion.

It's not that simple.
The constitution gives state's the right to set their electors in whatever manner they choose. But the constitution also gives congress the ability to set election dates/deadlines.

So if a state legislature changes things after the deadline then we have a conflict between 2 constitutionally protected powers. And its up to SCOTUS to decide how to resolve that conflict.

It think the most likely outcome is "States can do whatever they want before the deadline. After the deadline, it's too late to change their mind." Safe harbor, EC vote day, and even the 11/3 election will thus stand as rigid deadlines/limits.

[Boise3981]

State legislators exercise federal power when they pick state electors. The power doesn't come from a state constitution. The power comes from the federal US Constitution, in Article II Section 1.

No. That's still state power.

Article II section 1 says that states get to choose how to select electors that represent their state. It doesn't say states can exercise federal power. It's just setting aside authority to the states.

The states cannot, and never do, exercise federal power; only the national government can. Just as the feds cannot and never do exercise state power; only the states can.

Just because it's a federal office or the authority is listed in the federal constitution doesn't make it a federal power or a federal issue.

[Boise3981]

I don't think the answer is that clear at all...

1) Whether the rules were followed or not is up to the states (in particular the state courts) to decide. Idaho has no role to play in telling PA how to run its elections or select its electors.

2) Safe harbor doesn't apply if states are in dispute. But who gets to say whether the states are in dispute? The states. And by certifying, they state they're not in dispute. This is the core of Bush v. Gore. Gore wanted to keep going but ran out of time due to safe harbor. Neither Gore nor the SCOTUS could decide whether to take advantage of Safe Harbor - only the state could. They did in Florida 2000, they will in PA/GA/WI/MI/AZ/NV 2020.

3) In Hawaii 1960, a recount was underway and so Hawaii certified 2 slates of electors. Then on the day of voting, let Congress know which one they thought should be counted (in that case, it was based on what the governor said to do). It's not relevant here as there won't be 2 slates of electors from any state. There will be only the 1. Plus, the Hawaii precedent works against what you're saying: They approved 2 slates because they viewed the deadline as final and needed to do everything to get in under the wire. The Hawaii example reinforces Congressional deadlines on the EC and safe harbor.

You think the answer to all 3 is yes, I think the answer to all 3 is no. But what exactly the answer is would be up to SCOTUS that's what Dershowitz is talking about when he says they may rule to let legislatures pick alternate electors.

[crz]

Add to that, this;

Amendment XIV
Section 1
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Note this...

(No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;)

PA made law, and enforced it, abridging the citizens of the several states of their privileges. And it wasnt even the PA legislature making that law.

[Tanniker Smith]

And then again, they may not.

[livius]

I’d be surprised, but I guess we can always hope.

[Buckeye McFrog]

Apparently the Legislature here in PA is in something of a Catch 22 as their terms officially ended on Nov. 30. From what I’ve read the only way they could meet to choose electors would be if SCOTUS ordered them to.

Somebody out there correct me if I’m wrong.

[Brian Griffin]

The Electoral College vote date is the clear cutoff date.

The safe harbor date I believe relates to elector-related judicial actions. Please correct me if I’m wrong.

[Jaysin]

“Just call it a tax and maybe Roberts will go along”

nice!

[steve86]

“The same Hand of Divine Providence that miraculously birthed our nation by defeating the world’s greatest military power is at work today against the odds.”

Well, I hope so but you have to hope and pray that “Hand of Divine Providence” doesn’t change to “chastisement mode”.

[Jim W N]

No, we’re in the age of the New Covenant of grace my FRiend.

Jesus took the hit for the sins of the whole world. Imagine that.

So since God is not unjust to commit double jeopardy, he says, “For I will be merciful to their unrighteousness, and their sins and their iniquities will I remember no more” (Heb 8:12, 10:17).

God is true to his word. “Let God be true and every man a liar.”

[steve86]

Unfortunately, that might be an incorrect interpretation, originating with the unjustified glass-always-half-full-with-rose-petals wing of neo-Christian theology. God is still quite capable of punishing the living.

[DoodleDawg]

The safe harbor date I believe relates to elector-related judicial actions.

Under federal law, six days before the Electoral College formally votes any state's selection of its presidential electors is final and presumptively cannot be challenged in court or in Congress. Of course, anything can be challenged in court but odds of success would likely be less likely after December 8th than before it.

[whitney69]

“In 1872(?), women were told Amendment XIV gave them no voting rights whatsoever.”

I referenced the date so if anyone wanted to find the clause and the year it took effect, it was available. A lot of legal changes have occurred since 1868. Some of those denied voting are:

Non-citizens, including permanent legal residents

Some people with felony convictions. Rules vary by state. Check with your state elections office about the laws in your state.

Some people who are mentally incapacitated. Rules vary by state.

For president in the general election: U.S. citizens residing in U.S. territories (based upon electoral college requirements)

Women got the right to vote by the 19th amendment in 1920 and black men through the 15th in 1870. Other changes were it wasn’t until the Voting Rights Act was passed on August 6, 1965, that Black women were in-practice able to exercise their right to vote. So on this topic, black men got the vote ahead of any women.

But I was discussing a defense for the existing disenfranchising of voters and where it tied into Constitutional Law to force the SCOTUS not to turn down the case which is what the thread was talking about.

wy69

[Jim W N]

Unless you think God is unjust, how could he fully punish and condemn the sins of the whole world on the body of his Son Jesus, and yet still justly and righteously punish another for the same act?