Under federal law, Congress must count the electoral votes from states that act by Dec. 8 to choose their presidential electors — the people who meet next week in each state to cast the actual votes for president — and to resolve any remaining legal disputes over the choice.
The Electoral Count Act was passed in 1887, after four states sent in votes from two different sets of electors from the 1876 presidential race between Rutherford B. Hayes and Samuel Tilden. Congress had established no mechanism for resolving fights over competing slates of electors and adopted the act in hopes of heading off future disputes.
Under the law, Congress must count the electoral votes from states that chose their electors and resolve any legal disputes over the choice by the act’s deadline, which is six days before the electors meet to vote. Of course, if a state fails to meet the safe harbor deadline but chooses its electors by Dec. 14, Congress can still count the votes.
President-elect Joe Biden has 306 electoral votes to President Donald Trump’s 232, with 270 needed to win the White House.
The safe harbor deadline, however, is something of a guarantee. If for example, a state legislature decided to send in its own slate, the law says the electors chosen by popular vote and certified by the governor must be counted by Congress from states that met the safe harbor deadline.
Individual members of Congress could try to object and claim a state did not achieve safe harbor status. But states are nonetheless eager to meet the deadline. It was the Florida legislature’s desire to meet the safe harbor deadline in 2000 that led the U.S. Supreme Court to rule, in Bush v. Gore, that the state had run out of time to conduct any further recounts.
The federal law says a state qualifies for the safe harbor protection if it has resolved “any controversy or contest concerning the appointment of all or any of the electors.” State court cases remain active in six states that certified Biden the winner — Arizona, Georgia, Michigan, Minnesota, Nevada and Wisconsin. So they may not be able to claim the protection unless their cases are resolved by Tuesday.
In Wisconsin, Judge Stephen Simanek, presiding over Trump’s newly filed challenge to recounts in two counties, pressed the lawyers in the case to act quickly. “We have a safe harbor issue, but I want to go beyond that as little as possible,” the judge said. He scheduled a hearing in the case for Thursday.
Seeking the protection of the law is something of a belt-and-suspenders approach, given that there appear to be no serious efforts by the legislatures in those states to send Congress a separate slate of Trump electors.
Federal court cases remain active in Pennsylvania, but the general view among election law specialists is that the mere filing of a federal court lawsuit would not block a state’s achieving safe harbor status, unless a judge had required the state to take steps that would delay its choice of electors.
“Assuming that the pending federal court litigation does not give the plaintiffs any of the remedies they are seeking, these federal cases should not affect safe harbor status, even if they go past Tuesday,” said Edward Foley, an election law expert at Moritz College of Law at Ohio State University.
Trump, his campaign, and Republican supporters have filed more than four dozen lawsuits since Election Day. But so far they have affected only a small number of votes in disputed state races. And no court has upheld any of the claims of fraud.