President Donald Trump will win a lawsuit in Pennsylvania regarding ballots that were received after Election Day, Alan Dershowitz, a constitutional law expert, said this week.
“I do think that Trump will win the Pennsylvania lawsuit,” he said during an interview on “Breitbart News Tonight” on Nov. 12.
While Pennsylvania’s legislature rejected a proposal to accept late-arriving ballots, the state’s Supreme Court upheld a decision by Secretary of State Kathy Boockvar to accept them.
“That may have been the right decision in some theoretical sense, but the Constitution doesn’t permit anybody in the state but the legislature to make decisions about elections,” said Dershowitz.
“That was decided correctly in Bush versus Gore, and I think that four-to-four vote would become a five-to-four vote if the issue came before the Supreme Court and there were not disputed ballots to make a difference in the outcome of the election. That remains to be seen,” he added.
In the 2000 Bush v. Gore decision, the Supreme Court overruled Florida’s Supreme Court to block a requested manual recount of the state’s votes in the presidential election.
The ruling helped George W. Bush win the presidency because it delivered him enough electoral votes, on top of the ones he’d earned from other states.
The Pennsylvania case clearly belongs in federal courts but the Supreme Court will not take it unless the outcome would affect the outcome of the 2020 election, said Dershowitz, a Harvard Law School professor who helped Trump’s legal team during the impeachment saga.
“I think what the judiciary did may have been the right thing morally: if you get your ballot in on time, you shouldn’t be denied the vote just because the post office screwed up—I don’t think you can really make that argument under Article Two. I do think that the Republican argument is the stronger one,” he said.
“The Supreme Court will take the case only if it would make a difference, only if the plaintiffs—the Republicans—can show that the number of disputed ballots that were subject to sequestration by Justice [Samuel] Alito’s decision exceeds the difference between the winning margin and the losing margin.”
Supreme Court Justice Samuel Alito last week ordered Pennsylvania election officials to segregate ballots that arrived after Election Day, which the Republican Party of Pennsylvania had asked for, as the nation’s highest court decides whether to review the case.
Republicans said it wasn’t clear whether all 67 county boards of elections were following Secretary of Pennsylvania Kathy Boockvar’s guidance on ballot segregation.
Boockvar, a Democrat, advised counties to separate late-arriving ballots. In updated guidance, she said counties should count the ballots that arrived late.
Pennsylvania received some 10,000 ballots between late Nov. 3 and Nov. 6.
A Pennsylvania judge on Nov. 12 ruled that Boockvar overstepped her authority in a separate matter.
Boockvar “lacked statutory authority” to say that proof of identification could be provided to vote until Nov. 12, in contravention to state law, Commonwealth Court Judge Mary Hannah Leavitt ruled.
Boockvar said Friday that she would not order a recount for the presidential election or any other races. With tens of thousands of ballots left to count, Democratic presidential nominee Joe Biden is ahead by under 1 percent, or 62,260 votes.
Janita Kan, Mimi Nguyen Ly, and Jack Phillips contributed to this report.