December 9, 2020
Tuesday, December 8, is Safe Harbor Day—the day when all 50 states are expected to lock in their electoral votes—both by finishing up certification of the results and by resolving any state court legal challenges.
According to a report by The Chicago Tribune, by the end of the day, every state, with the exception of Wisconsin, is expected to have made its election results official.
The purpose of the safe harbor deadline is to serve as a guarantee of the election results by Congress. NBC News notes that, “If, for example, a state legislature decided to send in its own slate, the law says the electors chosen by popular vote and certified by the governor must be counted by Congress from states that met the safe harbor deadline.”
Other than Wisconsin, where a hearing is scheduled later this week, every state appears to have met a deadline in federal law that essentially means Congress has to accept the electoral votes that will be cast next week and sent to the Capitol for counting on January 6.
“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 Tribune.
The Electoral College is a creation of the Constitution, but Congress sets the date for federal elections and, in the case of the presidency, determines when presidential electors gather in state capitals to vote.
The attention paid to the normally obscure safe harbor provision is a function of Trump’s unrelenting efforts to challenge the legitimacy of the election. He has refused to concede, made unsupported claims of fraud and called on Republican lawmakers in key states to appoint electors who would vote for him even after those states have certified a Biden win.
But Trump’s arguments have gone nowhere in court in Arizona, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin. Most of his campaign’s lawsuits in state courts challenging those Biden victories have been dismissed, with the exception of Wisconsin.
Like the others, the lawsuit does not appear to have much chance of succeeding, but because it was filed in accordance with state law procedures for challenging election results, “it’s looking to me like Wisconsin is going to miss the safe harbor deadline because of that,” said Edward Foley, a professor of election law at Ohio State University’s Moritz School of Law.
Judge Stephen Simanek, appointed to hear the case, has acknowledged that the case would push the state outside the electoral vote safe harbor.
Missing the deadline won’t deprive Wisconsin of its 10 electoral votes. Biden electors still will meet in Madison on Monday to cast their votes and there’s no reason to expect that Congress won’t accept them. In any case, Biden would still have more than the 270 votes he needs even without Wisconsin’s.
But lawmakers in Washington could theoretically second-guess the slate of electors from any state that misses the December 8 deadline, Foley said.
Already, the Tribune notes, one member of the House of Representatives, Representative Mo Brooks (R-Alabama), has said he will mount a last-ditch effort for Trump—challenging electoral votes for Biden on January 6. Brooks would need to object in writing and be joined by at least one senator. If that were to happen, both chambers would debate the objections and vote on whether to sustain them.
But unless both houses agreed to the objections, they would fail.
The unwillingness of Trump and his supporters to concede is “dangerous because in an electoral competition, one side wins, one side loses and it’s essential that the losing side accepts the winner’s victory. What is really being challenged right now is our capacity to play by those rules,” Foley said.
Research contact: @chicagotribune