From a political perspective, Donald Trump’s claim that he won the 2020 presidential election will probably never die. But the extremely slim viability of his legal challenges to Joe Biden’s win, which descended into farce some time ago, will all but vanish on December 8, when the “Safe Harbor” deadline for certification of state results should cut off any further efforts to steal the election.
This deadline, created by the notoriously confusing Electoral Vote Act of 1877 (itself a reaction to the contested Hayes-Tilden election of 1876), essentially prohibits any challenge in Congress to state electors certified by that date, set at six days before the Electoral College virtually “meets” to cast votes for the next president. While it has never been fully tested, a state certification of results and electors existing at the time of this deadline should also be very difficult to question in state or federal courts.
Presently, 47 states plus the District of Columbia have already certified their results and their electors (all but Hawaii, Missouri, and New Jersey, none of whose results are in any doubt at all). That includes all the states in which Trump’s legal team has been trying to contest their leader’s defeat. So Joe Biden has locked down 288 electoral votes, 18 more than he needs.
In theory, there is one last gasp for Trump’s cause: a petition to the U.S. Supreme Court from Republican congressman Mike Kelly to cancel Pennsylvania’s certification of a Biden win on the grounds that the state law setting up this year’s election rules violated the U.S. Constitution by restricting state legislative control of the process. Election-law wizard Rick Hasen has called this “perhaps the dumbest argument ever made in an emergency petition to the Supreme Court”:
The question presented points to provisions in the Constitution that give state legislatures the power to set election rules, so how could that possibly be violated by a state legislature setting election rules?
Some eyebrows were raised when conservative Justice Samuel Alito, who has initial jurisdiction over emergency petitions from Pennsylvania, changed the hearing date for the Kelly petition from December 9 to December 8. But as Hasen notes, Alito probably just didn’t want to give the impression the Court was letting the clock run out on challenges to state certifications instead of (likely) rejecting this one as patently absurd.
Speaking of absurd efforts by Pennsylvania Republicans, the most ludicrous thing we saw last week that did not directly involve Rudy Giuliani was a letter signed by 60 Republican legislators asking Congress to challenge the Keystone State’s Biden electors, as the Philadelphia Inquirer reported:
Just hours after GOP leadership in the state House indicated they would not move to upend Pennsylvania’s election results in Harrisburg, Speaker Bryan Cutler and Majority Leader Kerry Benninghoff joined more than 60 Republican colleagues Friday in calling on members of Congress to do it instead.
After Republican legislative leaders conceded they had no power to appoint Trump electors as the president’s campaign has been demanding in all the states with relatively close results, Giuliani attacked them on Twitter, and Trump lawyer Jenna Ellis called them “liars,” “cowards,” and “traitors.” They then produced the letter fecklessly asking Congress to do what they admitted they could not do: steal Pennsylvania’s state-certified 20 electors from Biden. As I explained last week, even if there were some sort of unanimous revanchist uprising among Republican members of Congress in January aimed at “choosing” Trump electors in states he lost, it’s not clear there would be any available to choose after state certification of results. And in any event, it would require a vote by both the Democratic-controlled House along with the Senate to overturn the results, which of course is not happening.
But while Giuliani and Company may have succeeded in intimidating Pennsylvania legislators into a meaningless gesture, Team Trump did not do so well in Arizona last week, as the Republican Speaker of the Arizona House explained:
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….
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.
It gets worse for Team Trump, as National Review’s Jim Geraghty observes:
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.
The passage of the Safe Harbor Deadline should provoke a fresh wave of Republican exasperation at Trump and his clown-car legal team for misleading the MAGA faithful about the feasibility of reversing the 2020 results. If it doesn’t, we’ll know Trump’s stature in his party has exceeded its previously monstrous proportions.