President Trump’s legal team is filing lawsuits in a number of states.
Some have better chances than others.
The best legal case scenario for President Trump’s legal team is if the election were to turn on Pennsylvania and he were to lose Pennsylvania by a small number of votes, reflecting ballots cast before or on Election Day, but received only after election day.
Those ballots are being counted by Pennsylvania officials and, pursuant to court order, are being segregated from other ballots for purposes of judicial review.
The reason is a highly technical, but important constitutional argument.
Article II of the Constitution empowers state legislatures to establish voting rules for the selection of presidential electors. It does not empower the courts to establish such rules.
In Pennsylvania, the legislature has not allowed the counting of write-in ballots submitted before the end of election day, but received thereafter.
This may be wrong as a matter of policy and democratic principles, since no one should be deprived of their vote through no fault of their own.
But the Constitution empowers state legislatures to be wrong as a matter of policy, and does not empower the state courts to correct them.
In Bush v. Gore, 531 U.S. 98 (2000), the United States Supreme Court — in its notorious 5-4 partisan decision— pointed to that provision of the Constitution in stopping the recount.
At least three current justices have suggested that they are sympathetic to that view as well.
The Supreme Court divided 4-4 when a case presenting that issue came before the eight justices who were then sitting.
There is now a ninth justice who might well break that tie in favor of the president.
But for that scenario to occur, there would have to be a perfect storm in which the challenged Pennsylvania ballots were determinative of the outcome of the election.
That is possible, but unlikely. Indeed, even if the election were called in Biden’s favor as a result of Pennsylvania flipping away from President Trump, other states — Arizona, Nevada, or Georgia — could subsequently be called for Biden.
This would moot the Pennsylvania case, because Biden would have enough electoral votes without Pennsylvania to reach 270.
I am a lawyer who analyzes these constitutional issues without regard to my personal preference, party loyalty or vote. I do not allow wishful thinking to enter into my legal analysis.
The preceding legal scenario I have presented, therefore, represents my professional opinion as to President Trump’s chances in litigation.
Oliver Wendell Holmes once observed that the role of the lawyer is to predict what the courts will do. But Yogi Berra got it right when he said "Prediction is hard, especially about the future."
Let me add to Yogi Berra’s wisdom: Prediction is especially hard when it's about how judges will decide highly charged political cases.
No thoughtful person could have, or to my knowledge did, accurately predict the outcome of Bush v. Gore. That decision was a shocking departure from all prior precedent and is explainable only on partisan or ideological lines.
It had little or nothing to do with the law or precedent, as the justices themselves seemed to have acknowledged when they warned not to use the case as precedent in future litigations.
But, of course, it's precisely that case that is now being used as precedent for the Trump legal teams’ litigation moves.
So no one can be absolutely certain about how the courts will decide cases and controversies brought before them regarding the current election, especially since so many current federal judges were appointed by President Trump and confirmed by the Republican senate.
Stay tuned.
The counting of millions of votes may soon be over, but then we may be looking at the votes of just five people: the justices who could — should the stars align for President Trump — determine the outcome of this election as they did the election 20 years ago.
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Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School and author of "Guilt by Accusation" and "The Case Against the Democratic House Impeaching Trump." Read Alan Dershowtiz's Reports — More Here.
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