In Donald Trump’s continued quixotic effort to overturn the results of the presidential election, Tuesday marks the first date in which the finality of Joe Biden’s Electoral College victory becomes a legal reality.
According to US law, Tuesday is the “safe harbor” deadline for individual state governors to make their state’s slate of electors official, in writing, to the Archivist of the United States, the final step in the election process before the Electoral College meets on December 14.
Every state that has certified its electors or where “any controversy or contest concerning the appointment of all or any of the electors” have been settled will meet Tuesday’s deadline, ensuring their results will be seen as “conclusive” and cannot be challenged by Congress, according to the law implemented in 1887.
“What federal law requires is that if a state has completed its post-election certification by December 8, Congress is required to accept those results,” Rebecca Green, an election law professor at the William & Mary law school in Williamsburg, Virginia, told The Associated Press news agency.
It is expected that most of the 50 states and the District of Columbia will meet Tuesday’s deadline, virtually torpedoing Trump’s last-ditch efforts to force states to toss out disputed votes or replace slates of Biden electors with Trump electors.
Trump and his legal allies can continue filing lawsuits, however, but it is expected, based on past precedent, that courts will note the “safe harbor” deadline as the point of no return.
For instance, during the disputed 2000 presidential election, the US Supreme Court stopped a recount in Florida and issued a 5-4 ruling on that year’s “safe harbor” date, effectively handing the state – and the election – to George W Bush.
This year, in what is viewed as an extreme longshot effort, Trump’s allies are trying to get the US Supreme Court to effectively toss out Pennsylvania’s vote certification, arguing the state’s pandemic-related expansion of absentee voting violates the state constitution. The court’s deadline for a response to the pro-Trump lawsuit is Tuesday, and the court could weigh in by the end of the day, given the importance past courts have placed on the “safe harbor” deadline.
Meanwhile, the attorney general of Texas filed a lawsuit with the US Supreme Court on Tuesday, accusing four battleground states of unconstitutionally changing voting laws.
Election law expert Rick Hasen called this move “a press release masquerading as a lawsuit”.
“Texas doesn’t have standing to raise these claims as it has no say over how other states choose electors,” Hasen pointed out in a blog post adding, “it waited too late to sue … there’s no reason to believe the voting conducted in any of the states was done unconstitutionally; it’s too late for the Supreme Court to grant a remedy even if the claims were meritorious (they are not).”
Perhaps cognisant of the “safe harbor” deadline, Trump has shifted tactics in recent days, exerting pressure on state officials to have Republican-led state legislatures in states such as Arizona, Georgia and Pennsylvania replace Biden’s certified slates of electors with Trump electors before the Electoral College meets next Monday.
Trump has called the governor of Georgia and the speaker of Pennsylvania’s House to suggest such an action. Both have told the president it is not legal under their states’ laws for the legislatures to do that.
Pennsylvania House Speaker Bryan Cutler, who Trump called twice to discuss the matter, has already been on the record resisting the idea, including signing his name to a letter dismissing it. “[T]he General Assembly lacks the authority to take action to overturn the popular vote and appoint our own slate of presidential electors,” reads the letter signed last week by the state’s top Republican legislators.
In Georgia, Republican Governor Brian Kemp found himself on the other end of a phone call from the president on Saturday, where Trump urged him to call a special session of the legislature to get the wheels turning on an elector-switching gambit. Kemp’s response echoes Cutlers: Tt is simply not possible under state law to do it.
“Any attempt by the legislature to retroactively change that process for the November 3rd election would be unconstitutional and immediately enjoined by the courts, resulting in a long legal dispute and no short-term resolution,” Kemp and Republican Lieutenant Governor Geoff Duncan said in a statement on Monday to Georgia legislators, which immediately drew Trump’s ire.
Georgia Lt. Governor @GeoffDuncanGA is a RINO Never Trumper who got himself elected as LG by falsely claiming to be “pro-Trump”. Too dumb or corrupt to recognize massive evidence of fraud in GA & should be replaced! We need every great Georgian to call him out! #SpecialSession!
— Donald J. Trump (@realDonaldTrump) December 8, 2020
With the “safe harbor” deadline all but assuring that more electors will cast their votes for Biden when the Electoral College meets next week – Biden won 306 electors to Trump’s 232 – there is one last-ditch effort that is percolating among some members of Congress: Objecting to states’ slates of electors on January 6, when Congress meets to put the final stamp on the Electoral College vote.
As the “safe harbor” law insulates states’ electors from a congressional challenge under law, there is nothing stopping members of Congress from simply raising an objection. Republican US Representative Mo Brooks of Alabama was the first last week to indicate he is looking to round up more members to raise objections.
If at least one House member and one Senate member jointly raise an objection about a state’s certification of electors, which would trigger a two-hour debate, followed by a vote in each house of Congress. Currently, no senator has indicated publicly they are interested in the Brooks idea.
However, if a senator steps up and an objection is filed, both Houses would then have to approve tossing that state’s electors, something that has not happened since 2004 when Democratic Representative Stephanie Tubbs Jones and Senator Barabara Boxer objected to the Ohio certification. According to the US National Archives, both houses overwhelmingly voted to override the objection.
A similar effort next month is certain to fail, even if Republican support for the idea grows, as the Democratic-led House would not approve of a pro-Trump objection.
Once Congress affirms the Electoral College count, that would finally exhaust all of the Trump and pro-Trump efforts to deny Biden the presidency and pave the way for Biden to be sworn in on January 20.