‘Safe Harbor’ Day Was a Definitive Rebuke of Trump - Bloomberg

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What coup?

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Dec. 8, 2020, was “safe harbor” day — a day forward for President-elect Joe Biden and another step backward for President Donald Trump. It came and went without a constitutional crisis, punctuated by the Supreme Court’s late-afternoon refusal to overturn Biden’s victory in Pennsylvania.

It was important because it means people can stop sweating over the next important day in the transfer of presidential power — Dec. 14, when the electors of the president and vice president actually meet and vote.

But, first, what does the idea of a “safe harbor” mean?

The answer comes from the Electoral Count Act of 1887, enacted after the most chaotic and vicious presidential election in U.S. history, between Samuel Tilden and Rutherford B. Hayes. The vote in 1876 was sharply contested and followed by a lot of sordid wrangling from which Hayes emerged victorious.

The 1887 act was designed to ensure that nothing like the Tilden-Hayes fiasco happened again. More specifically, it was designed to ensure the primacy of the states, so long as they proceeded according to their own law.

Section 2 of the Act is the safe-harbor provision. The text is a mouthful:

If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determinations made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.

This improbably long sentence gives states near-complete protection against any kind of meddling from Washington (including Congress, the president and the vice president, who is the president of the Senate). It makes a solemn pledge: Congress will respect the determination of the states and not second-guess their decisions. If the states can make their “final determination” six days before the electors meet (Dec. 14, this year), Congress will back off.

That is, if states got their acts together by the specified date, the presidential election would be settled. Congressional counting of votes, held in January, would be purely ceremonial and could not include any shenanigans.

It’s true that Section 2 has some exceptions. If a state’s electors voted for an ineligible person (say, someone under the age of 35 or someone born outside the U.S.), Congress need not defer. 

More relevant to Trump and his supporters: It’s a tough call whether Section 2 allows Congress to question a state’s determination on grounds that it was based on fraud. Its text does not answer that question. In the House of Representatives, members argued during the debates that preceded enactment of the 1887 law, that Congress had to accept the state’s determination — and could never look behind it. One representative referred to the “conclusive presumption of validity.”

By contrast, some senators seemed to disagree. One senator said that a “fraudulent judgment is no judgment,” which means that “there is nothing to prevent the two Houses of Congress from penetrating a judgment obtained by fraud, because that would be no judgment at all.”

It wouldn’t be crazy to say that if the fraud is unmistakably clear, Congress can refuse to accept a state’s final determination. But Trump’s lawyers have not established anything like that — meaning that in this case, the safe harbor really is safe.

It’s true that the Electoral Count Act is not in the Constitution itself, and that some people have doubted whether Congress is bound by it. Trump’s lawyers have said they will disregard it. But Congress is most unlikely to do that, not least because it would unleash genuine chaos.

Yogi Berra once said, “It ain’t over till it’s over.” It’s over.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Cass R. Sunstein at csunstein1@bloomberg.net

To contact the editor responsible for this story:
Katy Roberts at kroberts29@bloomberg.net

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