Giuliani and Ellis: Today's electoral college "safe harbor" deadline means nothing

They’re right, sort of. The “safe harbor” law says that Congress has to accept a state’s electoral votes if legal disputes over those votes have been resolved by the “safe harbor” date, which is today. But there’s no way to force Congress to follow that rule. And since no state won by Biden has attempted to award its electors to Trump — although Pennsylvania’s Republicans are trying — there’s no reason why Congress wouldn’t end up counting those electoral votes for Sleepy Joe even if the court challenges continue.

Which they will. The “safe harbor” law certainly doesn’t bar you from suing to challenge a state’s election results after December 8. Which makes me wonder: What if, against all odds, a lawsuit like the one on appeal to Justice Alito from Pennsylvania succeeded in invalidating all of a state’s mail-in ballots? Would Congress be bound to award PA’s electoral votes to Biden if that lawsuit had been filed after the “safe harbor” deadline?

“Candidate wins despite court invalidating the votes cast for him” feels like a bad headline.

Anyway, the real significance of today’s deadline is psychological. It makes Biden’s victory seem that much more final, and can and will probably be used by courts going forward as part of their arguments for dismissing election challenges by Trump and his allies. The “elite strike force” legal team can keep cranking out these defiant base-pleasing press releases but they’re just going through the motions at this point. They’re pressing ahead not because they have any hope of undoing the results in any state but just so that they can say to lost-causers that they fought to the bitter end.

Never a good sign when lawyers are citing a dissent, which is what Ginsburg’s opinion in Bush v. Gore was. The majority opinion in that case *did* treat the “safe harbor” deadline as significant.

During the 2000 dispute between George W. Bush and Al Gore, as the court’s majority essentially awarded the presidency to Bush, the justices cited the looming deadline as a reason Florida could not initiate a new, manual recount.

“The majority treated the safe harbor very seriously,” Ohio State University law professor Ned Foley said. “That’s why there was no remand to give Florida another chance at recounting.”

Indeed, the very timing of the high court’s hasty resolution of the Bush v. Gore case seemed driven by the safe-harbor date. The justices heard arguments the day before it and decided on the very day, which was established in an 1887 statute intended to prevent uncertainty about the winner of the presidential election.

“As long as there is only one submission of electoral votes from a state, Congress must accept it unless it’s rejected by both chambers — which isn’t going to happen,” Bloomberg explains, citing election law prof Edward Foley. I take it that means either Trump needs a court to invalidate a state’s election results, which no court would ever do, or, sometime in the next eight hours or so, he needs the legislatures in swing states won by Biden to appoint their own pro-Trump electors. Doesn’t look like that’s happening:

“It’s completely unacceptable and it’s not going to work and the president should give up trying to get legislatures to overturn the results of the elections in their respective states,” said Pennsylvania Sen. Pat Toomey today of Trump’s attempt to get his state’s legislature to void their election results. That being so, the unrealistic, absolute best-case scenario for POTUS right now is that Alito takes the Pennsylvania case, SCOTUS rules that mail-in ballots are invalid — essentially voiding Pennsylvania’s election — and Biden wins the electoral college with 286 electoral votes instead of 306.

So what’s the point of keeping this going, unless it’s simply to prove you’re a “fighter”?

At some point, the fact that Trump and cronies like Sidney Powell are getting ruthlessly pounded in court after court after court after court works against them by proving to Americans who haven’t gone all-in on “rigged election!” hysteria that there’s just no there there. The courts can’t be in on The Big Steal too. (Well, to Powell and Lin Wood I suppose they can.) Ironically, MAGA fans are the group that’s most eager for SCOTUS to hear a Trump election challenge, believing that Barrett, Kavanaugh, and Gorsuch are partisan hacks who’ll surely rule Trump’s way due to “loyalty.” But in reality, it’s Trump opponents who should be most eager for the Supreme Court to grant a Trump appeal. Nothing would provide a more conclusory statement that this legal effort is futile than having the president’s own handpicked justices swat him down. Let’s get on with it, Alito.

The GOP should reeeeeally stop worrying about an election it already lost and focus on one that it still stands a chance to win:

Here’s the president turning his “vaccine summit” today into a rant about how he really won the election. No wonder Pfizer and Moderna didn’t want to attend this thing.