On the menu today: As of tomorrow, under U.S. law, the 2020 presidential election is really, really, really over, under something called the “safe harbor deadline.” The Supreme Court might weigh in on Representative Mike Kelly’s suit, which aims to invalidate all of the mail-in ballots in Pennsylvania this year. Meanwhile, the Trump campaign’s last-ditch legal efforts and attempts to sway state legislatures continue in Arizona and Wisconsin . . . with a, er, consistent record of success.
The 2020 Election’s ‘Safe Harbor’ Deadline Is Almost Here
Tomorrow, under U.S. law, the election results in each state become finalized under what is called the “safe harbor deadline.” The law declares that any completed and certified vote count “made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution.”
Federal law sets “the first Monday after the second Wednesday in December” as the date for electors to meet in each state and in the District of Columbia — which this year is December 14. Six days before December 14 is tomorrow.
As of this writing, the U.S. Supreme Court has a few hours to act upon a lawsuit filed by Pennsylvania GOP representative Mike Kelly, who argues that his state’s vote-by-mail law is unconstitutional and that every mail-in ballot cast in the state should be thrown out. This is the case that the Pennsylvania supreme court dismissed “with prejudice based upon [Kelly’s] failure to file the constitutional challenge in a timely manner” — concluding that Kelly should have filed his objection to the state’s mail-in ballot law before the state’s June 2020 primary election and the November general election.
It is entirely possible that the Supreme Court will decline to review Kelly’s argument, but the fact that Justice Samuel Alito moved the deadline up by one day suggests that Alito doesn’t want the Court to be accused of dragging its feet, and not considering Kelly’s case until after the safe-harbor deadline. Alternately, the U.S. Supreme Court may consider it, but I would not recommend betting any money you cannot afford to lose on the justices deciding to toss out every mail-in ballot in the Commonwealth of Pennsylvania.
When Kelly’s case is resolved, one way or another, the Trump campaign and its legal allies will have exhausted just about every legal avenue. The president’s legal team filed another suit in Georgia Friday, calling upon the courts to declare “systemic, material violations of the election code” occurred that have “rendered the contested election null and void as a matter of law” and requiring the state to hold another presidential election.
For the past few weeks, many of us have stated repeatedly that once a state’s vote count is certified, it’s more or less etched in stone. The lone arguable exception was the Florida recount in 2000 — and even in that case, the U.S. Supreme Court ultimately overruled the Florida supreme court and instructed Florida to stick with the previously certified votes. A few Trump fans have argued that certification is a small formality that can be easily reversed after a win in court. Yet somehow, some way, those courtroom wins have not materialized.
A Shakespearian Twist in Arizona
Shifting our attention from the judicial branch to the legislative branch, we find that President Trump and his legal team want Republican state legislators in key swing states to overrule the election results and name pro-Trump electors to the Electoral College.
Arizona House speaker Rusty Bowers, in a released statement Friday, laid out in detail why that will not happen in his state:
This week, Rudy Giuliani, Jenna Ellis, and others representing President Donald Trump came to Arizona with a breathtaking request: that the Arizona Legislature overturn the certified results of last month’s election and deliver the state’s electoral college votes to President Trump. The rule of law forbids us to do that.
Mr. Giuliani and Ms. Ellis made their case here at least twice — on Monday, at an unofficial public gathering hosted by a small group of legislators; and again on Tuesday, during a closed-door meeting at the State Capitol with Republican leaders from both chambers of the Legislature. Both times, the Trump team made claims that the election was tainted by fraud but presented only theories, not proof. U.S. Attorney General William P. Barr said on Tuesday that he, too, has “not seen fraud on a scale that could have effected a different outcome of the election.”
Even if such evidence existed, the Arizona Legislature simply couldn’t do what is being asked. Under our state’s constitution, the Legislature can act only when it is in session, and the Legislature could call itself into a special session only with the support of a bipartisan supermajority of its members.
That won’t materialize, but even if did, the Legislature couldn’t provide the recourse the President’s team seeks. The U.S. Constitution authorizes each state to appoint presidential electors “in such Manner as the Legislature thereof may direct.” For decades, Arizona law has required that the voters elect the state’s electors on Election Day — this year, on November 3rd. And under a law the Republican-led Legislature passed just three years ago, the state’s electors are required to cast their votes for the candidates who received the most votes in the official statewide election canvass. Enacted after the 2016 presidential election, in which President Trump won the electoral college but not the popular vote, the law was aimed at ensuring that Arizona’s electors would remain faithful to the vote of the people.
Our state’s canvass was completed on Monday, and Joe Biden and Kamala Harris received the most votes, so those are the candidates whom the state’s presidential electors must vote for. Nothing in the U.S. Constitution or the decisions of the U.S. Supreme Court even suggests that the Arizona Legislature could retroactively appoint different electors who would cast their ballots for 2 different candidates. The Trump legal team has cited McPherson v. Blacker (1892), to claim that the legislature can “resume the power [to appoint electors] at any time.” And it is true that the Arizona Legislature could alter the method of appointing electors prospectively. But it cannot undo the election of electors whom the voters already voted for. As the Supreme Court made clear in Bush v. Gore (2000), “[w]hen the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental.”
Bowers added, “as a conservative Republican, I don’t like the results of the presidential election. I voted for President Trump and worked hard to reelect him. But I cannot and will not entertain a suggestion that we violate current law to change the outcome of a certified election.”
Even if the Arizona state legislature wanted to meet this week to vote to reject the certified election results and name its own slate of electors . . . they can’t, because they’re closing for a week because Rudy Giuliani may have exposed the lawmakers to COVID-19. Shakespeare couldn’t write a twist like that.
Meanwhile, in America’s Dairyland . . .
Some of the Trump team’s legal efforts are set to continue after the safe-harbor deadline, hoping for some sort of extraordinary decision that would attempt to reverse certified election results and . . . who knows, maybe even the votes of certain presidential electors?
In Wisconsin, the Trump campaign filed suits in both the state court and federal court to have the election results tossed out and to have the state legislature pick the electors instead. The state supreme court ruled 4–3 against, the federal court judge sounds skeptical that he has the authority to invalidate the election results, and the GOP state legislators indicate they’re unwilling to reject the election results.
Joined by the state supreme court’s three liberal-backed justices, conservative-backed Justice Brian Hagedorn called a request to have the court invalidate the November election “unprecedented in American history” and “the most dramatic invocation of judicial power I have ever seen.”
“Judicial acquiescence to such entreaties built on so flimsy a foundation would do indelible damage to every future election,” Hagedorn wrote for the majority. “Once the door is opened to judicial invalidation of presidential election results, it will be awfully hard to close that door again. This is a dangerous path we are being asked to tread. The loss of public trust in our constitutional order resulting from the exercise of this kind of judicial power would be incalculable.”
“I have a very, very hard time seeing how this is justiciable in the federal court,” said U.S. district judge Brett Ludwig, a Trump appointee. “The request to remand this case to the Legislature almost strikes me as bizarre.”
In the hearing on the federal case Friday, Ludwig questioned why Trump wasn’t going directly to the legislature if he wanted lawmakers to get involved with naming electors. Bill Bock, the Trump campaign attorney in the federal lawsuit, said Trump needed the court to rule that the election was “invalid” so the legislature could get involved. He also said that the term “remand,” which is typically used to describe when one court sends a case to a lower court, was “inartful.”
Republican Assembly majority leader Jim Steineke cast serious doubt during the week on whether the legislature might change the state’s electors from Biden to Trump backers. Steineke tweeted a clip of actor Dana Carvey playing President George H. W. Bush saying, “Not gonna do it.”
(I know that last sentence sounds like something I would make up, but it is true.)
You can look at all of these developments, and see an ever-expanding network of Trump enemies, which now includes judges he appointed and many Republican state legislators, governors, secretaries of state, and other officials, all working together to ensure that a fraudulent victory by Joe Biden stands. Or you can look at the small mountain of legal defeats and conclude that the Trump campaign and its legal allies just don’t have a leg to stand on — that whatever evidence of vote fraud that they can find is meager, that their proposed remedies have no precedent, and that just about every legal and legislative authority who looks at their proposals sees a slipshod, unconvincing, fundamentally anti-democratic effort to overturn legitimate election results.
ADDENDUM: Democratic U.S. Senate candidate Raphael Warnock, in a debate with GOP senator Kelly Loeffler last night: “Listen, voter suppression is something that happens all across our country. It’s happened here in the state of Georgia, but Stacey Abrams did not refuse to acknowledge the fact that her opponent was the governor.”
Abrams has never conceded her race, and never publicly stated that Brian Kemp’s election was legitimate. She lost by 55,000 votes. Ten days after the election, Abrams issued a statement declaring, “I acknowledge that former Secretary of State Brian Kemp will be certified as the victor in the 2018 gubernatorial election,” but refused to say that certification or Kemp’s victory was legitimate. “I’m supposed to say nice things and accept my fate. They will complain that I should not use this moment to recap what was done wrong or to demand a remedy. And I will not concede because the erosion of our democracy is not right.”
About a year after the election, in a September 15, 2019, in Yahoo News article entitled, “Why Stacey Abrams still won’t concede.” Abrams said, “Concession in the political space is an acknowledgment that the process was fair. And I don’t believe that to be so.”
Perhaps Warnock acknowledged that Kemp was the governor, but she never accepted or stated that Kemp was the legitimately elected governor.