President Trump’s court fights and vote recounts don’t need to raise his Electoral College total to 270 votes for victory, contends constitutional scholar Alan Dershowitz.
They just need to deny Joe Biden that total.
Dershowitz, an emeritus professor of law at Harvard, noted in a column for the Gatestone Institute that Biden is not officially the president-elect.
“Let us remember that as a matter of law and constitutionality, Joe Biden is not yet the president-elect. He has been coronated by the media, by politicians and by most Americans. But to officially become president-elect requires, at the very least, certification by enough states to give him the 270 required electors. That has not yet occurred,” he explained.
The president’s road to reelection would require a “perfect storm” that now seems unlikely but not impossible, he said.
“The goal of the Trump legal team is not to get 270 electoral votes for their client. That seems beyond the realm of all possibility,” wrote Dershowitz. “The goal is to question Vice President Biden the 270 he needs for the Electoral College to select him as president. Since this is a zero-sum game, how is it possible for Biden to be denied the 270 without Trump reaching that number?”
He said that if “enough electoral votes are still being contested by mid-December, and if fewer than 270 electors are certified by their respective states by that date, then Biden could – in theory – be denied the necessary 270.”
“If that were to happen, then the election would be thrown into the House of Representatives, as it was on several occasions in the 19th century,” Dershowitz said.
Will Trump succeed in denying Biden 270 electoral votes?
83% (5 Votes)
17% (1 Votes)
“Under the Constitution, the House votes for president not by individual members, but by state delegations,” he noted. “Each state gets one vote, and so 26 states are required to elect a president. Although there are more Democrats than Republicans in the House of Representatives, there are more states with a majority of Republican representatives. Accordingly, if the election were to go to the House, the Republicans would determine the next president.”
He explained he’s not “advocating” such a strategy, just explaining it.
“This possibility dictates the strategy being pursued by the Trump legal team,” he said.
“Nor am I condemning the Trump lawyers who are seeking to implement this strategy. I just received an email asking me to sign a petition demanding the disbarment of President Trump’s lawyers for their advocacy. That is McCarthyism pure and simple. Lawyers are entitled to advocate all reasonable and ethically permissible strategies that serve the interest of their client. That is what President Trump’s lawyers are doing. They are, of course, obliged to operate within the rules of law and ethics, but I see no evidence that they are not doing so,” he said.
Dershowitz said Trump’s legal team needs only to convince state officials or judges that there are enough doubts about at least 35 electors to not certify them in time to vote.
Calling that “theoretically possible,” he said it may be why the president has not conceded or dropped legal challenges.
However, he called on the Trump administration to “cooperate” with the Biden transition team.
“So let the recounts continue. Let the judicial challenges go forward. Let the president say whatever he chooses about the election. These are all part of our democratic system of elections. But let us move forward with the transition,” he said.