Joseph R. Biden Jr. has already won the presidential election, but on Tuesday he moved closer to the White House.
At the end of the day, the country was on the verge of reaching the so-called Safe Harbor deadline, which is widely accepted as the date on which all state-level electoral challenges – such as recounts and audits – are supposed to be completed.
Basically, that means President Trump’s efforts to overthrow the presidential election are nearing the end of the line. After Tuesday, state courts are most likely expected to dismiss any new lawsuits challenging the election.
This is because the results of the elections which were certified by the states are now considered conclusive and by law the votes of the electoral college of those states must be counted by Congress. As of Monday night, all states except Hawaii had certified their results and Mr. Biden had garnered more than the 270 electoral votes needed to become president.
The Safe Harbor deadline would normally pass without too much notice, but it looks particularly notable this year as Mr. Trump and his allies attempt to reverse the electoral process. Here are some more questions and answers about the deadline:
Where did the Safe Harbor deadline come from?
A relatively obscure passage from the Electoral Counts Act of 1887 says that if there are disputes in a state over the results of an election, but the results are settled “at least six days before the time set for the voters’ meeting ”, these results are conclusive and must be counted by Congress.
This is called the Safe Harbor deadline. Federal law states that the electoral college must vote on the Monday following the second Wednesday in December – this year, December 14. The Safe Harbor deadline falls six days before that, December 8.
What are the practical implications of the deadline?
It basically acts as a guarantee that Congress must count the votes of the Electoral College of states that have certified their elections and signed off on a voters list.
In states that have certified their results, the delay should also help guard against further legal challenges in state courts.
“It plays into the litigation because the courts are aware of this deadline and want to give this advantage to the states, so they are doing their best to try to comply,” said Richard L. Hasen, electoral law expert. at the University of California, Irvine.
How can States benefit from the Safe Harbor?
The deadline is traditionally considered to have been met when a state certifies its votes.
Certification processes vary from state to state, but all require the governor to compile the certified results and send them to Congress, along with the names of the state Electoral College delegates.
President Trump has urged Republican-controlled legislatures in key states to step in and choose their own voters lists, but he has been pushed back at every turn. In the unlikely event that a state legislature attempts to appoint a separate group of voters, the United States House and Senate should agree to accept those electoral votes when Congress meets to count the votes on the day. January 6.
Does this mean the end of the prosecution of Trump and his allies?
Not really. But their chances of success are still growing. The Supreme Court on Tuesday rejected a request by Republicans in Pennsylvania to overturn the state’s election results.
At present, there are only a few unsolved state-level lawsuits, including some in Georgia, Arizona, Wisconsin, and Pennsylvania.
An open question is whether federal prosecutions can continue past the Safe Harbor deadline, even though it is likely that they can and will. Even so, there are only three federal lawsuits left – two in Wisconsin and one in Arizona – and they will almost certainly end soon.
Either way, the Trump campaign and his allies have failed to show that they would be deterred from filing more election-related lawsuits, even though they have lost nearly 50 cases.
Has the safety rule come into play before?
The majority of the Supreme Court in Bush v. Gore, the 5-4 decision in 2000 that handed the presidency to George W. Bush, cited the safe harbor arrangement as a reason to act quickly to conclude the election.
Lawyers for the Trump campaign on Tuesday downplayed the importance of the deadline in a press release, saying “it is not unprecedented for election contests to last well beyond December 8.”
“Justice Ginsburg recognized in Bush v. Gore that the date of ‘ultimate service’ is January 6, when Congress counts and certifies Electoral College votes, ”the statement said. “The only fixed day in the US Constitution is the inauguration of the President on January 20 at noon.”
But Judge Ruth Bader Ginsburg disagreed in Bush v. Gore.
Adam Liptak contributed reporting.