Arrival of ‘safe harbor’ day secures votes for Biden

WASHINGTON — A deadline that arrived Tuesday under federal law essentially locks in President-elect Joe Biden’s victory, even though President Donald Trump still has not conceded the election.

Other than Wisconsin, every state appears to have met the “safe harbor” deadline, which means Congress has to accept the electoral votes that will be cast next week and sent to the Capitol for counting on Jan. 6. Those votes will elect Biden as the country’s next president.

It’s called a safe harbor provision because it’s a mechanism by which a state can insulate its electoral votes against challenges in Congress by finishing up certification of the results and any state court legal challenges by the deadline, which was Tuesday.

“What federal law requires is that if a state has completed its postelection certification by Dec. 8, Congress is required to accept those results,” said Rebecca Green, an election law professor at the William & Mary law school in Williamsburg, Va.

The Electoral College is a creation of the Constitution, but Congress sets the date for federal elections and, in the case of the presidency, determines when presidential electors gather in state capitals to vote.

In 2020, that date is Dec. 14, six days after Tuesday’s safe harbor deadline.

Every state is expected to have made its election results official, awarding 306 electoral votes to Biden and 232 to Trump.

Trump has challenged the legitimacy of the election. He has refused to concede, made claims of fraud and called on Republican lawmakers in key states to appoint electors who would vote for him even after those states have certified a Biden win.

But Trump’s arguments have not been successful in

court in Arizona, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin. Most of his campaign’s lawsuits in state courts challenging those Biden victories have been dismissed, with the exception of Wisconsin, where a hearing is scheduled for later this week.

Because the lawsuit there was filed in accordance with state procedures for challenging election results, “it’s looking to me like Wisconsin is going to miss the safe harbor deadline because of that,” said Edward Foley, a professor of election law at Ohio State University’s Moritz School of Law.

Judge Stephen Simanek, appointed to hear the case, has acknowledged that the case would push the state outside the electoral vote safe harbor.

Missing the deadline won’t deprive Wisconsin of its 10 electoral votes. Biden electors still will meet in Madison on Monday to cast their votes. In any case, Biden would still have more than the 270 votes he needs even without Wisconsin’s.

But lawmakers in Washington theoretically could second-guess the slate of electors from any state that missed the Dec. 8 deadline, Foley said.

Already one member of the House of Representatives, Rep. Mo Brooks, R-Ala., has said he will challenge electoral votes for Biden on Jan. 6. Brooks would need to object in writing and be joined by at least one senator. If that were to happen, both chambers would debate the objections and vote on whether to sustain them.

Unless both houses agreed to the objections, they would fail.

PENNSYLVANIA CASE DENIED

Meanwhile, the Supreme Court on Tuesday rejected Republicans’ bid to reverse Pennsylvania’s certification of Biden’s victory.

The court without comment refused to call into question the certification process in Pennsylvania. Democratic Gov. Tom Wolf already has certified Biden’s victory.

Republican U.S. Rep. Mike Kelly of northwestern Pennsylvania and other plaintiffs pleaded with the justices to intervene after the state Supreme Court turned away their case.

The Republicans argued that Pennsylvania’s expansive vote-by-mail law is unconstitutional because it required a constitutional amendment to authorize its provisions.

Trump, meanwhile, twice called the Republican speaker of the Pennsylvania House in recent days to encourage challenges to the official results in the state.

Trump pressed the speaker, Bryan Cutler, on how Republicans planned to reverse the results of the election, a spokesman for Cutler, Michael Straub, said Monday night.

“He did ask what options were available to the Legislature,” Straub said, referring to the president.

Supporters of Trump’s claims have called on Republican-led legislatures in several states to overturn the results, although Pennsylvania’s General Assembly is out of session and cannot be called back except by Wolf.

“Cutler made it very clear what power the Legislature has and does not have,” said Straub, who characterized the president’s calls as seeking information rather than pressuring the speaker.

Pennsylvania is the third state in which Trump is known to have reached out to top elected Republicans to try to reverse the will of voters. He earlier summoned Michigan legislative leaders to the White House, and over the weekend he pressed Gov. Brian Kemp of Georgia to call upon that state’s Legislature to reverse the election.

Elsewhere, the Hawaii Supreme Court on Tuesday dismissed an elections complaint challenging the entirety of the Nov. 3 general election in the islands, which cleared the way for the results of the state’s presidential vote to be certified.

The state’s highest court, in a unanimous ruling, said the plaintiffs lacked standing to challenge the results of all federal, state and county races. Further, even if the plaintiffs had standing, they failed to prove any facts in support of their claims, the order said.

Biden won 63.2% of Hawaii’s vote, compared with Trump’s 33.9%.

Hawaii has four electors in the Electoral College.

The complaint was filed by three unsuccessful candidates for office — one Republican and two nonpartisans. It sought to invalidate the 2020 primary and general elections and have the state hold new contests.

‘CONCEDE PREMATURELY’

Separately, Rep. Alex Mooney, R-W.Va., moved to rebuke GOP colleagues who might suggest that Trump “concede prematurely.” In the Senate, Majority Leader Mitch McConnell, R-Ky., again declined to recognize Biden as president-elect. And during a meeting on inauguration preparations, GOP officials voted against recognizing that Biden and Vice President-elect Kamala Harris would be the people being inaugurated on Jan. 20.

House Majority Leader Steny Hoyer, D- Md., who put the question to the Joint Congressional Committee on Inaugural Ceremonies, called the gesture “astounding” in a statement Tuesday.

“Their continued deference to President Trump’s post-election temper tantrums threatens our democracy and undermines faith in our system of elections,” Hoyer said. Spokesmen for McConnell and House Minority Leader Kevin McCarthy, D-Calif., declined to comment on their no votes, referring questions to the joint committee.

Speaking on a House GOP conference call Tuesday morning, Mooney moved to condemn GOP colleagues who refuse to back Trump’s efforts to challenge the election and pressure him “to concede prematurely,” sparking a tense debate.

Mooney’s resolution, titled “Counting Every Legal Vote,” offers support for Trump’s postelection efforts to question the results in key states he lost as well as his “efforts to investigate and punish election fraud.” It also “condemns any member who calls upon Trump to concede prematurely before these investigations are complete.”

“I call on my fellow colleagues in the House GOP Conference to join me in sending a strong, united message of support for President Trump,” Mooney said in a statement Tuesday.

Several lawmakers spoke up against the resolution during Tuesday’s call, arguing that it was improper for the conference to condemn lawmakers for airing their views.

Among them was Rep. Adam Kinzinger of Illinois, who has pushed back on Trump’s claims of mass voter fraud.

“This is America,” Kinzinger said, according to a spokesman.

Also opposing the resolution was Rep. Anthony Gonzalez, R-Ohio, a member of the centrist Problem Solvers Caucus, who also has acknowledged Biden as president-elect. “It’s not the job of the conference to tell members how to think or what to say,” Gonzalez said, a spokesman confirmed.

Later in the morning, the top three Republicans on the inaugural committee — McConnell, McCarthy and Sen. Roy Blunt of Missouri — voted against Hoyer’s resolution effectively recognizing Biden as president- elect. Hoyer, House Speaker Nancy Pelosi, D-Calif., and Sen. Amy Klobuchar, D-Minn., backed the resolution.

Said Blunt in a statement, “It is not the job of the Joint Congressional Committee on Inaugural Ceremonies to get ahead of the electoral process and decide who we are inaugurating.” He added that the panel is “facing the challenge of planning safe Inaugural Ceremonies during a global pandemic” and should “focus on the task at hand.”

Asked later in the day about the election results, McConnell again demurred.

“This has become a weekly ritual,” he said at the weekly GOP news conference. “The Electoral College is going to meet on the 14th and cast a vote, and we’re going to have a swearing in of the next president on the 20th of January.”