Biden's Victory Cemented As States Reach Key Electoral College Deadline

Dec 8, 2020
Originally published on December 8, 2020 1:49 pm

Updated at 1:45 p.m. ET

It may come and go without much fanfare, but on Tuesday, the U.S. will pass a key deadline cementing President-elect Joe Biden's victory as the 46th president.

The day, Dec. 8, is known as the "safe harbor" deadline for states to certify their results, compelling Congress to accept those results.

Most Americans see Election Day as the end of the long political season aimed at choosing new federal leadership, but it's really only the beginning.

On Nov. 3, voters actually voted for which Electoral College electors to represent them, not for the presidential candidates themselves. Those electors then meet and cast votes, which are counted and finalized by Congress.

"The Electoral College is pretty complicated because it's a process," said Rob Alexander, a political science professor at Ohio Northern University and the author of a book on the Electoral College. "It's not one thing, it's not one event."

Court losses have continued to pile up for President Trump, and experts have already written off his ongoing crusade against the presidential election results as a disinformation campaign. But it shows no sign of stopping.

Trump's campaign team released a statement Tuesday attempting to downplay the deadline.

"Despite the media trying desperately to proclaim that the fight is over, we will continue to champion election integrity until legal vote is counted fairly and accurately," said attorneys Rudy Giuliani and Jenna Ellis.

But experts say Tuesday's deadline further limits what Trump's allies in Congress can do in terms of contesting the results.

"The best way to think of it is... as another nail in the coffin," tweeted Rick Hasen, an election law expert at the University of California, Irvine.

The process is continuing, and what has been clear for a month is still clear: Joe Biden will be the next president.

Poorly written legislation

The Tuesday deadline was put in place by a piece of 130-year-old legislation widely criticized as "almost unintelligible."

The Electoral Count Act of 1887 came as a reaction to the presidential election of 1876, which saw Democrat Samuel Tilden win the popular vote but ultimately lose the presidency to Republican Rutherford B. Hayes because of contested election results coming from three Southern states under the control of Reconstruction governments.

Congress had no rules in place to deal with such a scenario, so it created an ad hoc commission to decide the presidency and then passed the 1887 law afterward to avoid similar situations in the future.

The legislation is "extraordinarily complex" and "far from the model of statutory drafting," according to an analysis by the National Task Force on Election Crises, but it does create a clearer timeline for when states need to have their election results finalized.

Electoral College electors are scheduled to meet in states across the country on the first Monday after the second Wednesday in December (Dec. 14 this year) to cast their votes.

And if a state has finalized its results six days before then, according to the ECA, then those results qualify for "safe harbor" status — meaning Congress must treat them as the "conclusive" results, even if, for example, a state's legislature sends in a competing set of results.

Every state except Wisconsin appears to have met the deadline, according to The Associated Press. Wisconsin's 10 electoral votes are still expected to be cast for Biden on Monday; he won the state by just over 20,000 votes.

"If a state can conclude its process of appointing electors by that [safe harbor deadline] then Congress is bound by federal law to accept the slate of electors that is arrived upon by that date," said Rebecca Green, the co-director of the Election Law program at William and Mary.

Both Green and Alexander, of Ohio Northern, said they expect a few "faithless electors" to vote on Dec. 14 for a different candidate than voters chose but nowhere near enough to affect the underlying result.

A majority of states have some sort of law that either removes, penalizes, or cancels the votes of such errant electors, and the Supreme Court upheld the constitutionality of such rules earlier this year.

Trump allies in Congress may still look to stir drama during the electoral vote counting on Jan. 6, but a Biden presidency at this point is virtually certain.

Despite Trump's insistence that there was a widespread cheating scheme and therefore the results need to be overturned, no evidence to support that theory has come to light, Green noted.

"We saw in the instance of the courts that the answer was 'no,' barring credible evidence," Green said. "And I have no reason to believe that the institution of Congress will not follow that similar path."

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DAVID GREENE, HOST:

Let's be clear here - there are people who defend the Electoral College. There are others who say it's a complicated mess. Why elect presidents not based on popular vote? Why does it take weeks to make the outcome official and then more official and then even more official? Well, today is another milestone in Joe Biden's long road to become the 46th president of the United States, and we have NPR's Miles Parks with us. Hi, Miles.

MILES PARKS, BYLINE: Hey, David.

GREENE: So you cover voting, so you are the person to tell us where we are in the Electoral College process (laughter).

PARKS: I guess you might say that. Though, to be fair, I mean, it's long - it's a complicated thing for me to think about as well. So, I mean, as a refresher, on November 3, voters did not actually cast their ballots for presidential candidates, for Joe Biden or Donald Trump.

GREENE: OK.

PARKS: They voted for Electoral College electors who then meet and cast their votes for presidential candidates. Now, those meetings are scheduled to happen next week in states across the country on the first Monday after the second Wednesday in December, which this year is December 14.

GREENE: (Laughter) Wow, OK. But something is happening today, right?

PARKS: Yes. Today is what's known as the safe harbor deadline. Another really quick history lesson. After the contested election of 1876, Congress realized it had no mechanism for solving election disputes, cases where Congress received multiple sets of results from the same state about who won the presidency there. So they enacted this piece of legislation called the Electoral Count Act, a law that is notoriously poorly written and confusing, but which does set up a clearer timeline for when states need to have their results finalized. Basically, the law says that as long as the state has certified its results before the safe harbor deadline - which is today, six days before electors meet - then Congress needs to treat those results as conclusive.

GREENE: Well, and have states actually done what they were supposed to do?

PARKS: They have. Even though the Trump campaign and a number of other Republican groups have filed dozens of lawsuits that have tried to slow down the process or stop it completely, those have failed. And we should note - there's also been no evidence presented yet of the widespread cheating that President Trump has been constantly complaining about over the last month. Most states have certified, and every state will have certified by the deadline. And what that means is President Trump's allies in Congress now have a lot less latitude to contest those results when they receive them in January.

GREENE: So does this mean it really is the end of the line now for the Trump campaign?

PARKS: It's getting there. I mean, experts say to expect some drama on January 6, when votes are counted in Congress. But the underlying outcome is certain. Here's Rebecca Green, an election law expert at William and Mary that I talked to. I asked her about Trump's continued effort to stop this process.

REBECCA GREEN: You know, we saw an instance of the courts that the answer was no, barring credible evidence. And I have no reason to believe that the institution of Congress will not follow that similar path.

PARKS: The big open question now is when President Trump himself will accept this reality. There's been no indication yet that he's going to concede or anything close to that.

GREENE: No indication at all. All right, NPR's Miles Parks - journalist and, this morning, also historian for us. Miles, thanks so much for all this. We really appreciate it.

PARKS: Thanks, David. Transcript provided by NPR, Copyright NPR.