Joe Biden will be inaugurated the 46th President of the United States on January 20, but this hasn’t stopped the 45th President and his allies from filing an increasingly deranged and unlikely series of lawsuits in a slapdash attempt to overturn the results of the November 3 election. None of these lawsuits have ever had a good chance of accomplishing their stated goal, but life being what it is, they have made it difficult to totally foreclose the possibility that Trump will somehow stay in office. (He won’t.)
The framework for how this country handles presidential election disputes is codified in the Electoral Count Act of 1887. It provides for three key dates between the election and the inauguration when electoral challenges become increasingly less likely to succeed. The final and most severe is January 6, when Congress will formally vote to accept the electoral votes. But weeks before that, “on the first Monday after the second Wednesday in December” the electors in each state convene (virtually this year) to cast their votes for president. And then there is the earliest date: Safe harbor day. It is the most confusing and amorphous. And it’s today.
Here’s how Elie Honig describes it at CNN:
Under federal law, any state’s selection of its presidential electors that has been finalized six days before the formal Electoral College voting date (this year, December 14) is final and presumptively cannot be challenged in court or in Congress. In other words: Come December 8, the determinations of the states cannot effectively be challenged—by Trump or by his “elite strike force” legal team led by Trump attorney Rudy Giuliani. The states are not required to finalize their electoral votes by the safe harbor date—but if they do, those determinations are protected by federal law.
To find out whether this is finally the end of the road for Trump’s destructive attempts to overturn the results, I called Ned Foley, the director of Election Law at Ohio State:
What’s important about this day?
Safe harbor is optional in the sense that states don’t have to comply with it, it’s advantageous to do so. But sometimes I use the analogy to college admissions. Most colleges have a deadline. If you don’t apply for college by this date, we’re not going to consider your application. Whereas, early decision or early action is an option. If you want to put yourself in that category, then you have to meet the earlier deadline. But if you don’t, you still can apply.
How will safe harbor affect Trump’s legal challenges?
I think Wisconsin, unfortunately, is going to not comply with a proper deadline, because they’ve got a hearing scheduled for Thursday, pursuant to state law, and that’s going to take them out of the safe harbor. Wisconsin has already certified, but they authorize a statutory challenge to the certification. That and the statute, if you’re going to be safe-harbor-compliant, mean you have to achieve a final determination of any contest procedure. Wisconsin has that procedure, but it’s not going to achieve final determination until after December 8.
Do we need to worry about other states not getting safe harbor because of these lawsuits?
The mere filing of a lawsuit can’t deprive a state of safe harbor status, if the lawsuit is not timely. In Pennsylvania law, if you want to contest the certification of the appointment of electors, you can do that, but there’s a deadline. My understanding is, if somebody files a purported contest after the deadline, that does not deprive Pennsylvania of safe harbor.
Likewise, if Rudy Giuliani makes up some new procedure that only he and Jenna Ellis know about that doesn’t exist in Pennsylvania law, the fact that they file a new lawsuit claiming they want the courts to do something doesn’t deprive Pennsylvania of Safe Harbor.
The problem with Wisconsin is there is the statutory procedure. Wisconsin Supreme Court invoked it when it said “Don’t sue us in original action—go to the right court.” And then that court says, “Oh, we’re going to hold a hearing on Thursday.” That’s what will deprive Wisconsin of safe harbor. It’s an authorized procedure and it’s not going to be finished by tomorrow.
Let’s say I’m a very paranoid person who wants Joe Biden to become president. Is there anything left for me to be paranoid about?
No, I mean, none of this is going to matter in terms of inauguration. Joe Biden is going to take the oath on January 20. He’s going to get the nuclear codes and become president and commander-in-chief.
There’s lots of reasons to be concerned about what Trump is doing and how the Republican Party is reacting, and Congress. What I am a little bit concerned about is whether any senator joins Rep. Mo Brooks (R-AL). Brooks announced he’s going to object to Biden’s electoral votes on January 6. If members of Congress are acting properly on January 6, they should care about whether a state has safe harbor status or not. And if a state does have it, they should not even begin to think about evidence or anything. Let’s say Georgia gets safe harbor status, then the whole question about Dominion voting or did Georgia do the right thing or not the right thing, a conscientious member of Congress should say, “I don’t get to look at that. What safe harbor means is Georgia got to make that decision, right or wrong, and I’m bound by whatever Georgia did. So, President Trump, don’t be mad at me; I don’t get to make this judgment.”
That’s why safe harbor uses the word conclusive. It means that Georgia’s decision is conclusive on Congress. If a state like Wisconsin loses safe harbor status, as I think Wisconsin will, given the scheduled hearing, then I don’t think a senator can say Wisconsin’s already made the decision. I can’t look at it. The senator has to say, all right, what’s the merits of Wisconsin now? Again, the merits should be that Biden won. But how many members of Congress are going to agree with Brooks’ objection? I’d like to think that number is as small as possible. I mean, any senator or representative who agrees with Brooks is, in effect, claiming that Biden didn’t win that state. And since that doesn’t comport with reality, that’s problematic.
One could see all of this as an expression that our institutions are vulnerable, but maybe another way to look at it is a stress test—which we are passing.
Both things are true. My view is that the glass half empty is the better view at the moment than the glass half full. Yes, we survived the stress test, but we were stressed more than we should have been. The anti-reality forces have made this more of an issue than is warranted on the facts. So even though they are not going to prevail, the fact that they’ve shaped the discussion as much as they have is not a sign of health. It’s a sign more of weakness and vulnerability.
The current facts I would have considered beyond the range of contestation. The fact that they are within the range means that, if it had been even closer, the ability to make a real contest out of it would have been more likely. So if it had been one state with a 1,000-vote margin, we’d be in a lot different shape than we are with six states significantly beyond that. The fundamental point is that these forces were not willing to accept whatever the objective facts were. And that’s worrisome, right? If they’re not willing to accept the objective facts this time, what about next time?
Ah, so there’s still plenty to be paranoid about!
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