In Donald Trump’s continuing efforts to overturn the presidential election results, Tuesday marks the first date on which the finality of Joe Biden’s Electoral College victory becomes a legal reality.
According to U.S. law, Tuesday is the deadline for each state’s governors to formalize their state’s voters list in writing to the U.S. Archivist, the last step in the electoral process before the Electoral College meeting on December 14.
Any state that has certified its voters or where “any controversy or dispute regarding the nomination of all or part of the voters” has been resolved will meet Tuesday’s deadline, ensuring that its results will be considered “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 before Dec. 8, Congress is required to accept those results,” said Rebecca Green, professor of electoral law at the William & Mary Law School in Williamsburg, Virginia. The Associated Press news agency.
Most of the 50 states and the District of Columbia are expected to meet Tuesday’s deadline, virtually torpedoing Trump’s ultimate efforts to force states to reject contested votes or replace Biden’s voter lists by Trump voters.
Trump and his legal allies can continue to sue, however, but courts are expected to note the safe harbor deadline as a point of no return, based on past precedents.
For example, in the contested 2000 presidential election, the United States Supreme Court stopped a Florida recount and issued a 5-4 decision on that year’s “safe haven” date, effectively handing the state – and the election – to George W. Bush.
This year, in what is seen as an extremely long-running effort, Trump allies are trying to get the United States Supreme Court to effectively reject Pennsylvania’s certification to vote, arguing that the expansion of absentee voting is linked to the state pandemic violates the state constitution. The court deadline for a response to the pro-Trump lawsuit is Tuesday, and the court could step in by the end of the day, given the weight past courts have placed on the “sphere of” deadline. security”.
Meanwhile, the Texas attorney general filed a lawsuit in the United States Supreme Court on Tuesday, accusing four battlefield states of unconstitutionally changing voting laws.
Electoral law expert Rick Hasen called the decision a “press release disguised as a trial”.
“Texas does not have standing to raise these demands because it has no say in how other states choose voters,” Hasen said in a blog post, adding: “He waited too long. late to sue … there is no reason to believe that the vote in any of the states was done unconstitutionally; it is too late for the Supreme Court to grant a remedy even if the claims were founded (they are not). “
Change of tactics
Possibly aware of the safe harbor deadline, Trump has shifted tactics in recent days, pressuring state officials to have Republican-led state legislatures in states such as that Arizona, Georgia and Pennsylvania replace Biden’s certified voters lists with Trump voters before the Electoral College meets next Monday.
Trump called the governor of Georgia and the president of Pennsylvania’s House to suggest such action. Both told the president that it was not legal under the laws of their states for legislatures to do so.
Pennsylvania House President Bryan Cutler, whom Trump has called twice to discuss the matter, has already officially resisted the idea, including signing his name in a letter rejecting it. “The general assembly does not have the power to take action to reverse the popular vote and appoint our own list of presidential voters, ”read the letter signed last week by the state’s main Republican lawmakers.
In Georgia, Republican Gov. 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 spin the wheels on a gambit of change. voter. Kemp’s reply Echoed Cutlers: It’s just not possible under state law to do that.
“Any attempt by the legislature to retroactively change this process for the Nov. 3 election would be unconstitutional and immediately prohibited by the courts, resulting in a lengthy legal dispute and no short-term resolution,” said Kemp and the Republican Lieutenant Governor. Geoff Duncan in a statement Monday to Georgian lawmakers, which immediately angered Trump.
Georgia Lieutenant Governor @GeoffDuncanGA is a RINO Never Trumper who got himself elected LG by falsely claiming to be “pro-Trump”. Too stupid or corrupt to recognize massive evidence of GA fraud and should be replaced! We need every great Georgian to call him! #SpecialSession!
– Donald J. Trump (@realDonaldTrump) December 8, 2020
With the ‘Safe Harbor’ deadline almost guaranteeing that more voters will vote for Biden when the Electoral College meets next week – Biden won 306 voters versus 232 for Trump – there is one final push spreading among some members of Congress: Opposition to state electoral lists on January 6, when Congress meets to finalize the Electoral College vote.
Because the Safe Harbor Act protects state voters from being challenged in Congress, nothing prevents members of Congress from simply raising an objection. Republican U.S. Rep. Mo Brooks from Alabama was the first last week to say he was looking to rally more members to raise objections.
If at least one member of the House and one member of the Senate jointly raise an objection about state certification of voters, it would trigger a two-hour debate, followed by a vote in each chamber of Congress. At this time, no senator has publicly indicated that they are interested in Brooks’ idea.
However, if a senator intervenes and an objection is filed, then both houses would have to approve the rejection by voters in that state, which has not happened since 2004 when Democratic Rep. Stephanie Tubbs Jones and Senator Barabara Boxer opposed the certification of Ohio. According to the United States National Archives, both houses voted overwhelmingly to override the objection.
A similar effort next month is sure to fail, although Republican support for the idea grows, as the Democratic-led House would not approve a pro-Trump objection.
Once Congress confirms the Electoral College tally, it would ultimately exhaust all Trump and pro-Trump efforts to deny Biden the presidency and pave the way for Biden to be sworn in on January 20.