Dershowitz: Supreme Court Mail-Ballot Ruling Is ‘Just the Beginning’
Alan Dershowitz says the Supreme Court’s decision preventing President Donald Trump’s new mail-ballot rules from taking effect before November’s midterm elections does not necessarily determine how the underlying legal dispute will ultimately be resolved. The Harvard Law professor emeritus described the ruling as “just the beginning” of the litigation.
Speaking Tuesday on “The Record With Greta Van Susteren,” Dershowitz emphasized that the justices were considering an emergency request to allow the US Postal Service regulations to take effect while litigation continues. The court declined that request Monday, leaving a lower-court injunction against the rules in place.
“The ballot issue will not affect the midterms,” Dershowitz said. “That’s what the Supreme Court held.”
Dershowitz argued that the opinions accompanying the court’s order contain indications that the administration could receive a more favorable hearing when the underlying legal issues are considered outside the immediate pressures surrounding the November election.
Justice Brett Kavanaugh agreed that the rule should remain blocked for the upcoming election but wrote separately that there is “at least a fair prospect that the final rule falls within the Postal Service’s statutory authority.” He nevertheless concluded that implementing the requirements at this late stage would be “arbitrary and capricious.”
Justices Samuel Alito and Clarence Thomas dissented. Alito’s opinion argued that the government had satisfied the requirements for a stay and was likely to succeed on the merits of its appeal.
Dershowitz interpreted the positions of Kavanaugh, Alito and Thomas as giving the administration a potential foundation for a future Supreme Court victory. He said Kavanaugh had indicated that the administration “has the better of the legal argument,” although that wording was Dershowitz’s interpretation and does not appear in Kavanaugh’s opinion.
He also suggested that other justices who declined to permit the regulations to take effect immediately could nevertheless reach a different conclusion when considering the merits of the broader case.
“It’s certainly possible that the Trump administration could get five votes,” he said.
Dershowitz said Congress could address some of the controversy by establishing federal minimum requirements while leaving states with their constitutionally assigned role in administering elections.
He said a federal statute requiring voters to demonstrate citizenship “would probably be upheld as constitutional,” arguing that legislation could settle at least part of the legal dispute over federal election standards.
“Cheating in elections is as American as apple pie, unfortunately,” Dershowitz said, referring to historical allegations surrounding the 1960 presidential election in Illinois and the ballot controversy in Palm Beach County during the 2000 election. He also reiterated his view that Trump won the 2020 presidential election. Dershowitz’s statement about 2020 is his position; official results and subsequent certification established Joe Biden as the winner of that election.
Monday’s Supreme Court order keeps intact a federal judge’s preliminary injunction preventing implementation of the Postal Service regulation. The rule would require ballot-mail envelopes to meet specific design and scanning requirements, including a specialized barcode for each voter, and would require states to upload specified voter information to a Postal Service portal.
The court’s unsigned order said the government was “unlikely to succeed on the merits” in its request for emergency relief. Kavanaugh’s separate opinion, however, distinguished the immediate dispute from the broader statutory issue and said there was a fair prospect that the Postal Service possessed authority to issue such a rule.
Dershowitz said the litigation will now proceed beyond the emergency stage, while cautioning against assuming how individual justices would ultimately rule once the underlying legal questions are fully presented.
