On Tuesday, the “safe harbor deadline” for states’ Electoral College results, the legal team for President Donald Trump insisted that it is not unprecedented for election contests to last beyond the safe harbor date, in this case, December 8. In fact, Trump lawyers Rudy Giuliani and Jenna Ellis cited the late Supreme Court Justice Ruth Bader Ginsburg in saying that the date of “ultimate significance” is January 6, when Congress counts the votes of the Electoral College.
“The ‘Safe Harbor Deadline’ is a statutory timeline that generally denotes the last day for states to certify election results. However, it is not unprecedented for election contests to last well beyond December 8,” Giuliani and Ellis wrote.
“Justice Ginsburg recognized in Bush v. Gore that the date of ‘ultimate significance’ is January 6, when Congress counts and certifies the votes of the Electoral College,” the Trump lawyers argued. “The only fixed day in the U.S. Constitution is the inauguration of the President on January 20 at noon.”
The safe harbor date need not mark the end of the Trump campaign’s legal dispute, Giuliani and Ellis insisted. “Despite the media trying desperately to proclaim that the fight is over, we will continue to champion election integrity until the legal vote is counted fairly and accurately,” they concluded.
In Bush v. Gore (2000), the Supreme Court’s majority assigned significance to the safe harbor date. The majority halted a Florida recount, in part because the Florida Supreme Court had stated that the Florida legislature intended to meet the December 12 “safe harbor” deadline.
Ginsburg dissented, noting that U.S. code also mentions different dates for Electoral College results. “The statute identifies other significant dates” such as December 18, when electors meet and give their votes, and December 27, when Congress, if it has not received a state’s electoral votes, shall request an immediate certified return.
“But none of these dates has ultimate significance in light of Congress’ detailed provisions for determining, on ‘the sixth day of January,’ the validity of electoral votes,” Ginsburg wrote.
The Trump campaign and other outside groups are working hard to expose illegal election activity, and Attorney General Ken Paxton (R-Texas) just filed a motion with the U.S. Supreme Court requesting the Court block certification of swing-state presidential election results until swing-state legislatures can examine campaign officials’ alleged violations of law. The safe harbor date will come and go, and the battle for the integrity of the 2020 election will continue.
Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.