Happy Safe Harbor Day!

2020, being the sort of year that it is, has thrown yet another hand grenade into our midst. Over the past 72 hours, I have seen far too many people claiming that “Safe Harbor Day” is not a thing, that its purpose is unconstitutional, that “nothing is final until January 20th.”

Hogwash.

Granted, this is a bit more than you’ll get in a Civics 101 class, but all of those assertions are being made by people who (for the most part) are well aware they are flat-out lying to their readers and listeners. Hopefully, by the time I’m done here you’ll walk away a bit wiser and understand why today really is the end (finally!) of the Presidential Election of 2020.

To understand why this date is crucial and supported by the Constitution, you first need a little history. While everyone, not incorrectly, points to the election of 1876 as the flash point that led to the reforms that were first codified in 1887, and later as Title 3 of the US Code, the reality is that the first 80 years were filled with electoral headaches. There was the election of 1800, which resulted in the 12th Amendment being ratified. Nobody much recalls that the election of 1860 resulted in 4 candidates receiving electoral votes – only that the result was the Civil War. The election of 1824 could not be resolved in the Electoral College and wound up being decided in the House of Representatives, the last time an election has been decided in this way. The elections of 1868 and 1872 (as well as 1876) were marred by allegations of voter intimidation by the KKK. The election of 1872 featured one candidate, Horace Greeley (yes, the newspaper editor) dying before the Electoral College met. That all resulted in all sorts of recriminations, as Congress debated if electoral votes for a dead man should be counted and 14 electors were disqualified for that reason (hope you’re paying attention).

All of this set the stage for what is easily the most contentious election in our history*: the election of 1876.

President US Grant’s second term was marred by one political and financial scandal after another. Corruption was rampant. The Panic of 1873 was global financial collapse whose effects were still being felt at the outset of World War 1, some 40 years later. Add in the horrors of Reconstruction, which didn’t “reconstruct” much of anything except the same animus that had led the Confederacy to revolt in the first place, and the nation was a powder keg.

The Democrats nominated Samuel Tilden, a well-known prosecutor and governor, as someone who could reform the government, end Reconstruction, and erase the corruption. Tilden was best known as the man who successfully tried “Boss” Tweed, so his bona fides were well established. Initially, the Republicans tried to get Grant to run for a third term, but he was reluctant. A joint resolution of Congress asking him not not break with precedent seems to have been the final decider for him. Regardless, the GOP was without a candidate heading into their convention. After 7 ballots, they finally settled on Rutherford B. Hayes, who by all accounts was a nice guy but virtually unknown outside of his home state of Ohio.

The campaign itself was an occasionally bloody affair. The KKK engaged in a campaign of voter intimidation and ballot stuffing throughout the old Confederacy (in fact, they likely overplayed their hand, as South Carolina wound up with more votes cast than state residents). Shots were fired at Hayes while he was eating dinner once. Things became so heated that Grant called up the Army to encamp around the District of Columbia, as there was genuine fear that elements of the Confederacy might engage in a Second Civil War.

Yes, it was that tense.

When the votes were counted after the election on November 7th, Tilden had 184 electoral votes, Hayes 165. But 4 states, represented by 20 electors, sent two sets of electors to the College. Nothing like that had ever happened in the nation’s history and there was nothing in the Constitution to guide anyone as to which electors should be recognized. There were no laws, no statutes, no anything. But there was precedent for Congress challenging and disqualifying electors. Just four years prior, Congress had removed 14 electors for voting for a dead man (told you this would come up again).

So, Congress created a joint commission to determine which electors should be recognized. It was truly a bipartisan affair. The commission was made up of 5 elected Republicans, 5 elected Democrats, and 5 Supreme Court Justices, 2 appointed by Republicans, 2 by Democrats and the 5th to be determined by the other 4 justices. But even here, the times informed the choice: the original Justice selected was promptly selected to the Senate by the Democrats in Illinois, who thought he would serve out his time on the commission before taking office. He surprised everyone by immediately vacating his seat.

Complicating the commission’s work was that in three of the states (Florida, South Carolina and Louisiana), voting irregularities simply could not be sorted through (remember South Carolina, with more votes than residents?). Oregon’s competing slates featured a split ticket and full ticket for Hayes. After more than a month of testimony and haggling, the commission came to an agreement. The Democrats would get an end to Reconstruction and a promise from Hayes not to run for re-election. The Republicans would get all 20 outstanding electoral votes certified for Hayes. It is the only time in our history that someone achieved a majority of the popular vote but failed to secure the Presidency.

It was against this backdrop that Congress passed the Electoral Act of 1887. Prior to then, the date the Electoral College met was generally agreed on in a joint resolution of Congress, in accordance with Article II, Section 1, Clause 3 of the Constitution. This was Congress’ way of setting a timeline for when electors needed to be submitted to Congress for certification and when electors would meet to cast their votes – and avoiding the fiasco that had occurred just ten years earlier. What Congress did was take the electoral powers granted it under the Constitution and codified them, so that everyone would know the rules. Further, they stipulated that any state that could not certify their electors prior to the Electoral College meeting, would risk not having those electors recognized.

In 1948, Congress went a step further and codified the entire election process under Title 3, Chapter 1 of the US Code. There are 21 sections in this chapter, covering everything from election day (Sect. 1, “The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.”) through the Presidential Succession Act (Sect. 19) and the steps a President needs to legally accomplish to either resign or refuse his office (sect. 20).

The point is, these laws are based on the Constitutional authority granted Congress, either under the 12th Amendment or Article II. Their constitutionality was upheld in Bush v Gore, when the Supreme Court ruled that if a state is ready to certify their electors, then all other proceedings are moot:

Because the Florida Supreme Court has said that the Florida Legislature intended to obtain the safe-harbor benefits of 3 U. S. C. §5, Justice Breyer’s proposed remedy—remanding to the Florida Supreme Court for its ordering of a constitutionally proper contest until December 18-contemplates action in violation of the Florida election code, and hence could not be part of an “appropriate” order. (emphasis mine)

Per Curiam opinion, Bush v Gore

You’ll note that while most of the opinion recognizes the Florida Supreme Court’s creation of due process conflicts that require a remedy, because the state legislature was prepared to certify their electors under 3 USC Chapter 1, Section 5, they could not stand in the way. Whatever the remedy was, it could not violate the “safe-harbor” provisions of electoral law.

So what does this section of the US Code say about “safe-harbor”? It says:

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 determination 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.

https://uscode.house.gov/view.xhtml?path=/prelim@title3&edition=prelim

In layman’s terms, if a state has certified their electors 6 days before the Electoral College meets, then those electors are the ones who cast their votes. This is crucial. It was Congress determination not to relive the nightmare of the election of 1876 by ensuring that each state certified their electors before the voting began. Also, as recognized by the Supreme Court some 20 years ago, legal challenges to a state’s electors must be decided no later than 6 days before the Electoral College meets. Any legal challenges to certified electors (how an elector is certified is covered under Section 6) after that date is moot.

Does this mean all of the lawsuits currently in state court are now worthless? Yes. Absolutely. Does it mean pending actions in federal court are now over? For the most part, yes. While a court might find some abrogation of due process or equal protection, they will be required to follow Bush v Gore and Justice Alito’s decision; the remedy cannot be to invalidate the state’s electors.

*I know in our desire for relevancy, we want to think of either the election of 2000 or 2020 as the Most Contentious Election In American History, but they probably don’t even make the top 5. 1800, 1824, 1860, 1872, 1876, 1920, 1940 and 1960 all featured results that were at least as, if not more disputed.