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WASHINGTON – President Donald Trump’s long-shot bid to overturn the election became more far-fetched Tuesday after most states appeared to meet the deadline to guarantee that Congress must accept their electors.
Tuesday marked the “safe harbor” deadline. Federal law requires that Congress recognize the slates of electors chosen by states that have resolved legal fights, recounts and other election disputes by this date.
The deadline came after the Trump campaign lost a barrage of court challenges in Michigan, Pennsylvania, Wisconsin, Georgia, Arizona and Nevada – each battleground states President-elect Joe Biden won – seeking to overturn the Nov. 3 presidential election.
Federal judges in Michigan and Georgia on Monday dismissed separate lawsuits from former Trump attorney Sidney Powell, an ally of the president, who tried to overturn results in those states with unfounded allegations of voter fraud. On Tuesday, the U.S. Supreme Court denied a request by Republican Trump allies in Pennsylvania to invalidate the state’s presidential election.
“With each day that passes, particularly once the safe harbor deadline has passed, the possibility of changing the result becomes more and more remote,” said Rebecca Green, director of William and Mary School of Law’s election law program. “Without credible evidence to support the idea that there’s a problem, it just becomes less and less likely that anyone is going to disrupt the schedule as it unfolds in state statutes and federal law.”
The Associated Press reported every state except Wisconsin appears to have met the safe harbor deadline, effectively locking in Biden’s election win despite Trump’s false claims of victory. Governors are required to communicate if they reached safe harbor status to the U.S. archivist.
Miriam Vincent, an attorney for the National Archives and Records Administration, could not say how many states met the deadline. She said some states may have certified their elections even if the archives hadn’t yet received a certificate.
The safe harbor deadline, outlined in the Electoral Count Act of 1887, falls six days before the Electoral College meets Dec. 14 to formally cast votes for president based on the popular votes in each state.
Congress then meets Jan. 6 to count the electoral votes and certify a presidential and vice presidential winner. Biden is set to defeat Trump 306-232 in the Electoral College based on the certification of election results by states.
Trump has not conceded the election, claiming the election was stolen by reciting conspiracy theories and claims of widespread voter fraud.
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The safe harbor protection applies to states that have settled “any controversy or contest concerning the appointment of all or any of the electors.” States don’t have to meet the safe harbor deadline to have their electors counted. But for the states that do, their determination “shall be conclusive, and shall govern in the counting of the electoral votes,” the act reads.
“Meaning that Congress will not second-guess or question the state’s own final determination,” said Ned Foley, director of the election law program at Ohio State University’s Moritz College of Law. “It gives the states the opportunity to chart its own destiny, if you will, with the respect to its electoral votes. Because if they make that final determination by that deadline, that’s the answer and Congress promises not to question it.”
Trump attorney Rudy Giuliani downplayed the importance of the safe harbor deadline in a statement Tuesday, saying it is “not unprecedented for election contests to last well beyond December 8.”
“Despite the media trying desperately to proclaim that the fight is over, we will continue to champion election integrity until (every) legal vote is counted fairly and accurately,” he said.
But the U.S. Supreme Court recognized the significance of the safe harbor deadline in 2000 when justices halted recount efforts in Florida so the state could meet the deadline in the race between President George W. Bush and Democrat Al Gore.
When electors from all 50 states and the District of Columbia meet Monday, they are obligated to vote for the candidate they pledged to support. Biden electors will convene in states Biden won, and Trump electors will convene in states Trump won.
When Congress counts the electoral votes on Jan. 6, it is historically a formality that reaffirms the Electoral College’s action.
But in Pennsylvania, more than 60 Republican lawmakers have called on the state’s congressional delegation to reject Biden’s victory in the state.
And U.S. Rep. Mo Brooks, R-Ala., said last week he hopes to “reject the count of particular states” like Georgia and Pennsylvania that had “flawed election systems.” Trump applauded the congressman.
Any effort to defy the votes from the Electoral College has virtually no shot of succeeding. It would be further guaranteed no success in states that meet the safe harbor deadline.
Reach Joey Garrison on Twitter @joeygarrison.