Is the election finally over? Is it really over? Is it over over, or just mostly over? I’m asking for a friend who is so totally over this headache that won’t quit, this seemingly eternal telethon raising funds for skating rinks in Hell.
Answer: It’s pretty much over except for the shouting, which will probably never stop anyway because 2020 has broken everything, and this is what we’re left with.
Today is “Safe Harbor Day,” and its explanation is a little long in the telling. First of all, people technically did not vote for Joe Biden or Donald Trump last November. They voted for Electoral College electors who will soon represent those voters in the final certification of the results. This is important, because the nightmare presidential election of 1876 exposed the lack of any legal mechanism to deal with rogue slates of electors being presented as legitimate by states disputing the outcome of an election.
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To fix this, Congress passed the Electoral Count Act in 1887. “Under the law,” reports Pete Williams for NBC News, “Congress must count the electoral votes from states that chose their electors and resolve any legal disputes over the choices by the act’s deadline, which is six days before the electors meet to vote.”
The electors meet on December 14, six days from now. All but three states have certified, and the absence of those three does not alter the outcome of the election. No more court cases will be allowed now that this deadline is upon us; the results of the election have been brought into a “safe harbor,” where they will await final certification. That smells a lot like “over” to me.
The Electoral Count Act isn’t some pushover piece of legislation; in fact, it has a notoriously muscular bit of recent history. It was this Act in 2000 that gave the Supreme Court the legal cause it needed to stop the recount in Bush v. Gore. According to the high court and its reading of the Act, Florida had run out of time to do anything further. That decision only changed… well, history. Next up came 9/11 and the wars in Afghanistan and Iraq. Pretty impressive for a poorly written 133-year-old law.
Twenty years after the court said Florida was out of time, so — it would overwhelmingly seem — is Donald Trump.
“From a political perspective, Donald Trump’s claim that he won the 2020 presidential election will probably never die,” writes Ed Kilgore for New York Magazine. “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.”
In the whiplash-inducing reality bubble that serves as Trump’s personal terrarium, ideas tend to have the shelf life of a mouse fart. Just yesterday, CNN was reporting on “a sense developing” within the bedraggled, battered Trump camp — both his legal team and his campaign — that it’s pretty much all over now. Between lead attorney Rudy Giuliani’s COVID infection and the arrival of the “Safe Harbor” deadline, there don’t appear to be any more open spots on the checkerboard, and all Trump’s kings have been jumped.
Comes the dawn, however, and with it another quixotic charge by Trump into the legal windmills that have been batting his arguments aside like a World Cup goalie. “President Trump called the speaker of the Pennsylvania House of Representatives twice during the past week to make an extraordinary request for help reversing his loss in the state,” reports The Washington Post this morning, “reflecting a broadening pressure campaign by the president and his allies to try to subvert the 2020 election result.”
Texas Attorney General Ken Paxton — who is himself under indictment for multiple counts of fraud — is also getting into the act, suing Georgia, Pennsylvania, Michigan and Wisconsin directly in the Supreme Court. His argument? Paxton is accusing those battleground states of “exploiting the coronavirus pandemic to illegally enact last-minute changes to mail-in voting rules,” according to Bloomberg News.
Upon reviewing the merits of the Texas case, legal experts rolled their eyes so hard they sprained their faces. I also find it highly unlikely that Chief Justice Roberts will hang his hat on this bent hook by granting cert to the case, but again, it’s 2020.
And, of course, Trump’s hard-right minions in the House of Representatives have no interest in being left out of the fun, or the fundraising. Rep. Jim Jordan and his wreckers’ brigade in the Freedom Caucus are going to kick up all the dust they can between now and January 6, when the electors are set to be finally certified by Congress. On that day, if a Senator joins a House member’s official complaint about the validity of the vote, the process stops.
I was in the House gallery with a group of activists in January of 2005 when precisely this scenario unfolded. Rep. Stephanie Tubbs Jones rose to object to the brazen election fraud that had taken place in Ohio that November, and her objection was seconded by Sen. Barbara Boxer. In such an instance, the rules dictate that the House and Senate return to their respective chambers for two hours of debate, after which they reconvene.
In 2005, the objection was raised and seconded, the Congress divided and debated for two hours, reconvened, and George W. Bush’s victory was certified and confirmed not long after. There is every reason to believe the same thing will happen this year, assuming Rep. Jordan or one of his cohorts even manages to find a GOP Senator willing to play along. Would Mitch McConnell allow it? Doubtful, but possible. As Esquire blogger Charles P. Pierce has said, “I am not going to be comfortable until Joe Biden’s hand comes off the Bible.”
So, yeah, happy “Safe Harbor Day.” Is it over? Yes. No. Sort of. Soon. Never. My head hurts.