Other than Wisconsin, every state seems to have met a federal law deadline 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. Those votes will choose Joe Biden as the country’s next president.
It’s called a safe harbor stipulation because it’s a kind of insurance policy by which a state can lock in its electoral votes by finishing up certification of the results, and any state court legal challenges by a congressionally imposed deadline this year is Tuesday.
“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,” said Rebecca Green, an election law professor at the William & Mary law school in Williamsburg, Virginia.
The Electoral College is a creation of the Constitution. Still, Congress sets a date for federal elections and determines when presidential electors gather in state capitals to vote in the case of the presidency.
In 2020, that date is December 14. But Congress also set another deadline, six days before electors meet, to insulate state results from being challenged in Congress.
By the end of the day, every state is expected to have made its election results official, awarding 306 electoral votes to Biden and 232 to President Donald Trump.
The attention paid to the typically obscure safe harbor provision is a function of Trump’s unrelenting efforts to challenge the election’s legitimacy. 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, except Wisconsin, where a hearing is scheduled for later this week.
Like the others, the lawsuit does not appear to have much chance of succeeding. Still, because it was filed following 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 ten 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 one member of the House of Representatives, Rep. Mo Brooks, R-Ala., has said he will challenge Biden’s electoral votes 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 electoral competition, one side wins, one side loses and the losing side must accept the winner’s victory. What is really being challenged right now is our capacity to play by those rules,” Foley said.
The safe harbor provision played a prominent role in the Bush v. Gore case after the 2000 presidential election. The Supreme Court shut down Florida’s state-court-ordered recount because the safe-harbor deadline was approaching. The court’s opinion was issued December 12, the deadline in 2000.
Vice President Al Gore conceded the race to George W. Bush, then the Texas governor, the next day.
In his dissent, Justice Stephen Breyer said the deadline that really mattered was when the Electoral College was scheduled to meet. Whether there was time to conduct a recount by then “is a matter for the state courts to determine,” Breyer wrote.
When Florida’s electoral votes, decisive in George W. Bush’s victory, reached Congress, several Black House members protested, but no senators joined in. It was left to Gore, who presided over the count as president of the Senate, to gavel down his fellow Democrats’ objections.