While Donald Trump continues to falsely insist he won the 2020 race, Tuesday marks an important deadline further cementing that Joe Biden will be inaugurated as America’s 46th president on 20 January.
This year, 8 December is the so-called “safe harbor” deadline, which federal law says must fall six days before electors meet across the country to cast their votes for president. The statute says that as long as states use existing state law to resolve disputes about electors by the deadline, the votes cast by those electors will be “conclusive”. It is meant to act as a safeguard so that Congress, which will count the electoral votes on 6 January, can’t second-guess or overturn the election results.
At least one Republican member of Congress, Mo Brooks of Alabama, has said he will object to electors and Republicans in Pennsylvania have urged lawmakers to do the same. Those challenges are unlikely to be successful because a majority of both houses would have to agree to the challenge. Democrats control a majority of the US House of Representatives.
The Guardian spoke to Edward Foley, a law professor at Ohio State University, about the importance of the safe harbor deadline and what it could mean.
Why is the safe harbor deadline so important?
The key concept of safe harbor is the benefit that states get if they meet it. But it’s optional.
It’s desirable that they get this benefit, but it’s not essential. And what makes it desirable is Congress promises to accept as “conclusive” – that’s the statutory language – any resolution that the state itself meets if it complies with these two requirements, one being timing and the other being the use of existing law.
A state puts itself in as good a position as possible to have its electoral votes accepted by Congress if it’s safe-harbor-compliant. Because if Congress obeys its own promise, then it’s a done deal.
Lacking safe harbor status doesn’t mean a state’s electoral votes are going to be rejected by Congress. It just means that they’re arriving in Congress without the benefit of a super-shield, if you will.
Are there states that are at risk of not meeting safe harbor? It seems like every state has certified.
Yes. Certification is not sufficient for safe harbor status.
Electors have to be certified and they have to get their own certificates of ascertainment from the governor, and that then allows them to go to the state capitol and vote … That’s happened at least in enough states now for Biden to be above 270 electoral votes. There’s no danger of that not happening.
States that have litigation procedures written into state law to challenge a certification, even after the certification has occurred … it’s often called a contest. That’s a term of art, in law, that means you’re contesting the certification. If any state has a procedure like that … that’s what has to be finalized by 8 December for safe harbor status.
Wisconsin, for example, is a state that’s looking like at the moment like it’s not going to achieve safe harbor status because it has a hearing on 10 December in state court pursuant to a procedure that exists in state law … I’m not expecting that procedure to be successful in overturning certification. But I think it does mean that there will not be a final determination of that controversy or contest concerning the appointment of electors until after 8 December.
And that opens the door for Congress to second-guess the electoral votes that Wisconsin is sending?
It deprives Wisconsin of that super-shield that we were talking about. It doesn’t mean that Congress will reject the votes. I don’t think it puts Wisconsin’s votes in any practical jeopardy. But it does put them in a different legal status.
Representative Brooks from Alabama says he’s going to object to Biden’s electoral votes. I don’t know if he specified which states. But in my judgment it is inappropriate for any member of Congress, representative or senator, to file an objection to any electoral votes that actually have safe harbor status.
Congress should treat safe harbor status in the way the law calls for it to be treated. It’s conclusive. There shouldn’t be any objections filed to anything that a member of Congress believes to have safe harbor status. But if it doesn’t have safe harbor status, then I think it opens it up, as you said, to congressional second-guessing, in a way that safe harbor status shouldn’t.
When a state meets safe harbor, a member of Congress and a senator can still object to its electoral votes. And I expect we will see those objections. You talked about safe harbor offering a super-shield. What does that protection actually look like?
Unless there’s some court that’s gonna try and tell Congress what to do on 6 January, which I don’t really envision, then it’s up to Congress to police itself in terms of its own rules.
Every conscientious member of Congress, whether representative or senator, once the objection is raised … they’re not supposed to say: ‘Who do I think won Georgia? Who do I think won Pennsylvania?’ They’re supposed to ask themselves: ‘Did Georgia and Pennsylvania utilize a procedure to achieve its own resolution of that issue? Did they do so by 8 December?’
It’s up to Congress to abide by that rule that Congress created and not be tempted to second-guess a decision that it’s not supposed to second-guess. But human beings being human beings, if members of Congress want to ignore their own rules and second-guess something which they shouldn’t be second guessing, then who’s to stop them?
A lot of people are going to hear that and say: ‘If it’s up to Congress to police itself, that’s not reassuring.’ I think a lot of people will have a hard time believing there are going to be Republican senators, with a few exceptions, that aren’t willing to go along with an objection.
I totally get the realism there. And I understand why readers would want to think that. But here’s where I think maybe the safe harbor concept might provide a buffer for some.
Take someone like Senator Rob Portman of Ohio. It might be that the concept of this super-shield could actually help him both in his own internal and mental deliberations and also with his constituency, by saying: ‘Look, I’m trying to do a job here and the job I’m supposed to do is respect state law. I’ve been told by the relevant act of Congress that I’m obligated to accept the state’s judgment. I’m not going to ask myself who won Georgia. I’m only going to ask myself whether Georgia reached a final answer.’
How concerned should people be if a state like Wisconsin doesn’t meet safe harbor?
This year, as a practical matter, I wouldn’t have any concern. I think it’s unfortunate that Wisconsin wound up where it will. I think it was unnecessary.
I think the extent to which we get more objections of the Representative Brooks kind, it’s going to erode Congress’s own self-policing, which they should do, which is probably not a good thing.
There’s no threat to Biden’s inauguration. What there is potentially … if one senator signs anything that Representative Brooks submits, that’s going to cause there to be a repeat of what happened in 2004 … I think there will be roll-call votes.
Even though Biden’s going to be inaugurated, if a lot of senators go on record agreeing with Brooks, that’s agreeing with a claim that Biden didn’t win those states.
I think that’s a very likely scenario.
It’s taking us into a realm of American politics that I’m not sure we’ve had before. I mean, it’s a denial of reality that’s very dangerous.
Elections require accepting results, even if your team loses. Your team will win next time, maybe. You give the winning team a chance to govern based on what the voters said this time. You have to acknowledge that reality. For significant numbers of members of Congress, going on the record, if that’s what happens, in defiance of that reality, that will be really dangerous for the operation of competitive elections.
This interview has been condensed and edited for clarity