Harvard Law School professor Alan Dershowitz said Saturday on Newsmax that he doesn't quite understand the legal argument being made by the Department of Justice against election audits like the one in Arizona, because the Constitution "allows states to determine their own election processes" and the DOJ doesn't have the last word in such issues.
"The last word would be had by the Supreme Court," Dershowitz said on Newsmax's "Saturday Report."
"I don't understand the theory under which a state can't do whatever it chooses to do, like Florida chose to do in Bush versus Gore, and what Georgia has chosen to do, and other states have chosen to do."
Earlier this week, the DOJ issued guidance saying that post-election audits and voting laws passed recently in several states "risk violating the Civil Rights Act."
The guidance has been seen as a warning to Arizona's auditors and said that when election records are no longer being controlled by officials that could lead to a "significant risk of the records being lost, stolen, altered, compromised, or destroyed," particularly in the case where private entities who don't have experience with such records are not familiar with federal law.
"The Justice Department can threaten, but in the end, they don't make the decision," said Dershowitz. "The decision is made by the courts and I don't completely understand the theory under which the Justice Department expects to be able to stop auditing of votes."
If the auditors were trying to change the results of the 2020 election, matters would be "very different," he added, "but any state is entitled to do whatever it chooses to do as long as it doesn't violate the voting laws and as long as it doesn't discriminate against the votes of people who are minorities or other protected classes."
Meanwhile, meaning everyone should be allowed to vote.
"We have to strike the proper balance between bringing out voters who are eligible and preventing ineligible voters from voting, and every state has the right to do that," said Dershowitz. "Obviously there is federal law, which prohibits the states from doing certain things that explicitly discriminate, but, uh, counting ballots and doing what Arizona is doing. I don't understand the theory."
He also dismissed the thought that such audits could change the results of the election, which put President Joe Biden in the White House.
"We've never had a situation like this in the history of the United States," said Dershowitz.
"Theoretically, I guess a state could withdraw its electoral votes, but it's too late. We already have a president...I don't think unless one finds massive, massive fraud of the kind that doesn't exist, the idea of undoing an election is just unthinkable under American law, and the Constitution just doesn't provide for it, so I think we have to focus on the future to make sure that the next elections, the congressional elections, the federal, the presidential election are not only fair but appear to be fair because the appearance of fairness is crucial to the preservation of democracy."
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