Tuesday marked the “safe harbour” deadline in federal law that states had to meet to ensure Congress would be essentially required to accept their certified election results.
Other than Wisconsin — where a lawsuit from President Donald Trump and his campaign is pending — every state in the country appears to have met that deadline, which comes six days before members of the Electoral College meet to cast their votes.
Those votes will definitively elect Biden as the country’s next president, despite Trump’s efforts to persuade everyone from state legislators to the U.S. Supreme Court to intervene.
Here’s how the next few weeks are expected to play out.
What is the ‘safe harbour’ law?
The safe harbour provision is a kind of insurance policy by which a state can lock in its electoral votes by finishing up certification of the results and any state court legal challenges by a congressionally imposed deadline, which this year was Tuesday.
“What federal law requires is that if a state has completed its post-election certification by Dec. 8, Congress is required to accept those results,” Rebecca Green, an election law professor at the William & Mary law school in Williamsburg, Virginia, told the Associated Press.
The attention paid to the normally obscure safe harbour provision is a function of Trump’s unrelenting efforts to challenge the legitimacy of the election. He has refused to concede, made unsupported claims of fraud and called on Republican lawmakers to intervene while supporting a series of shaky legal arguments.
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Most of those lawsuits from Trump’s campaign and his allies have been dismissed in state courts, with the exception of Wisconsin, where a hearing is scheduled for later this week.
Like the others, the lawsuit does not appear to have much chance of succeeding, but because it was filed in accordance with state law procedures for challenging election results, the state will not be able to formally certify its results until after a judge rules in the case.
The Electoral College meets
On Monday, Dec. 14, presidential electors will gather in state capitols across the country and cast their votes in the Electoral College.
The state certifications appointed groups of electors to essentially represent either Biden or Trump for president, based on who won the popular vote in that state. The size of the group is different depending on how many legislators each state has in Congress.
Those votes are expected to solidify the projected results of the election, which have Biden securing 306 electoral votes and 232 for Trump.
No matter what happens with the lawsuit in Wisconsin, Biden electors will still meet in the state capitol of 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 10 votes.
On to Congress
After the Electoral College meets, the official counts of electoral votes in each state will be read aloud during a joint session of Congress on Jan. 6.
Once it is clear that Biden has secured more than the 270 electoral votes needed, the president of the Senate — Vice-President Mike Pence — will announce the results, officially declaring Biden the winner of the presidency.
Biden and vice-president-elect Kamala Harris will then be inaugurated on Jan. 20, officially kicking off the start of their four-year term at noon that day.
Members of Congress can attempt to challenge the results of the election during the joint session before the count concludes.
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One Republican in the House of Representatives, Alabama Rep. Mo Brooks, has said he will challenge electoral votes for Biden at that January session. 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.
But unless both houses agreed to the objections, they would fail. The Democrat-led House of Representatives is unlikely to agree to any objections over Biden’s victory.
In 2016, several Democratic members of the House tried to challenge Trump’s Electoral College victory, pointing to evidence of Russian interference in that election.
None of those members secured support from a senator, however, and Biden — then vice-president and president of the Senate — curtly shut them down, at one point eliciting applause and laughter from Republicans.
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Could Trump still overturn the results?
Despite Trump’s continued refusal to accept the results of the election, his legal team and those of his allies have continued to suffer defeats in court. On Friday alone, state judges dismissed lawsuits in nearly every other swing state Biden won, including in Georgia, Arizona and Michigan.
Trump’s hopes that the U.S. Supreme Court could step in also imploded Tuesday, when a bid from Pennsylvania Republicans to overturn the state’s certification of Biden’s win was rejected.
The Republicans argued that Pennsylvania’s expansive vote-by-mail law is unconstitutional because it required a constitutional amendment to authorize its provisions — even though that law was passed by the Republican-controlled legislature in 2019.
The high court rejected the request to intervene in the case in a one-sentence statement, with none of the justices offering opinions or dissents, suggesting they have no intention of stepping into the controversy surrounding the election.
Conservative lawyer George Conway, who’s married to former Trump campaign manager and presidential advisor Kellyanne Conway, told CNN Tuesday that with the safe harbour deadline passing and judges rejecting Republican legal challenges, the writing is on the wall.
“This cake has been baked for a long time,” he said.
“They can make all the noise they want. It’s an embarrassment, (and) they are misleading some segment of the American people that wants to believe that somehow, Donald Trump can pull this off.”
—With files from the Associated Press
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