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.”
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.
A few of you – ok, it’s actually quite a few – seem to have bought into the latest line of idiocy.
Which line is that, you ask? The one the “presteejus” legal firm of Trump, Giuliani & Ellis is spouting about “just wait until we try our case at the Supreme Court.” Folks, that’s about as asinine a claim as can be made.
The Supreme Court is not a trial court. It is the highest appellate court in the land. The 9 justices only accept cases where the circuit courts have differing opinions about a law, a law deserves scrutiny to see if it passes Constitutional muster, or if a law was severely abrogated in the circuit courts. It doesn’t hear or depose witnesses that are not already in the case file (it rarely hears witness testimony, ever). It does not search out new evidence.
This is why this bullcaca being spread by those folks is, well, bullcaca. The time to get that evidence in the record was in the original cases. Trump’s lawyers never even attempted to get any of their “evidence” into the record, aside from one case in Michigan. Not in any of the Pennsylvania cases. Not in the Nevada case. The Arizona case was dropped. The Georgia case was dropped. The Wisconsin case was pulled when they realized their evidence was based on faulty data.
In other words, while there’s always a chance the Supreme Court will agree to review one of these cases, it’s more likely it won’t. There’s nothing in any if them that appears to be an egregious, reversible error. It won’t be the Michigan case, which was never appealed. It won’t be the Nevada case, which was narrowly focused on voting laws used in one county and dismissed with prejudice.
The only ones that might gain their interest are two Pennsylvania cases. the first has to do with the Pennsylvania Supreme Court allowing mailed ballots received up to 3 days after the election, an apparent violation of the state’s statute regarding when ballots are due. That case would be regarding executive authority being wielded by the courts when none is granted. However, that would only affect about 25,000 ballots in a state Trump lost by 84,000 votes, so it wouldn’t be enough to swing the state’s electoral votes. It would be important in asserting the principle of legislative prerogative, but so far nobody has shown any interest in getting this before the federal bench.
The second is the one that has received national attention, the one dismissed for lack of evidence and bad faith claims by the circuit court judge and later upheld by the appellate court. That faces a mighty climb, but Rudy, et al. could argue that they should have been allowed an evidentiary hearing and to amend the redress asked to mailed ballots only. Even if against all odds the Supreme Court decided to hear those arguments and then rule in Team Trump’s favor, it wouldn’t swing those votes. It would only send the case back to the circuit court for the evidentiary hearing and a new ruling.
And now here’s the kicker: all of that would have to happen by December 8. If the Electoral College votes on December 14, you may ask, why do the Electoral Slates need to be decided by December 8? The reason for that harkens back to the election of 1876, when several states sent competing Electoral ballots to Congress, creating a huge mess. So Congress passed the Compromise of 1877, part of which ended Reconstruction in exchange for granting Hayes’ electoral votes recognition in Congress. The other, less famous part requires states to submit their electors no less than 6 days before the Electoral College meets, allowing Congress time to resolve any conflicts before the vote.
*Many people are confused about what Bush v Gore decided. The Supreme Court ruled the Florida recount over, allowing the state legislature to send the Bush electors to the Electoral College, although Congress preferred to send the Gore electors. It affirmed the states’ right to resolve electoral disputes before Congressional intervention.
So that’s what makes all this wailing and gnashing of teeth and rending of garments so unseemly. In one week, the electors will have been chosen. At this late date, you are not going to get the Supreme Court to order a new trial that might cause one slate of electors to be replaced by another when there is no evidence in the trial record – and no evidence in the record, period, as pointed out by two judges – that would support such a move. Team Trump is not stupid, they know this. They’re counting on the fact you don’t know this.
It is one last desperate plea to be seen as going down as fighters, when the reality is they never fought at all. They’ve made noise, they’ve blown apart legitimate concerns about election integrity on the altars of one zany conspiracy theory after another, they’ve filed dozens of lawsuits. But they never made any cogent arguments in any court that any particular state was the subject of a massive conspiracy to defraud the citizens.
In the end, the Supreme Court will see through the charade. It’s a shame that many of you haven’t.
*Joe Biden, to the surprise of nobody who’s been following the vote counts, is now the President-Elect. It isn’t the outcome I wanted, but it is what it is. If we’re true patriots, we wish him well, line up as the loyal opposition and carry on.
*We’re undoubtedly in for a bumpy month while we await state certifications. It seems a foregone conclusion the President will unleash every legal tool available to him to stave off the inevitable. That’s his right, but history is not on his side. The courts (properly) prefer not to be involved in elections, unless there is clear evidence of malfeasance.
*We can only hope when all is said and done, the President concedes. I’m not asking him to be gracious about it, that would be totally out of character. But failure to do so will only validate every tweet, op-ed, and media commentator who has labeled him as a wannabe dictator.
*Finally, those of us who call ourselves conservatives need to ask if the last four years were about fealty to a single man, or loyalty to our founding principles? Because if the last four years for you was about loyalty to a person, then you’ve lost. If it was about loyalty to principles, then you understand that this is just a temporary set back, and a narrow one at that.
We spent four years laughing at “The Resistance,” and with good reason. Watching them parade around in their pink pussy hats, strip naked and howl at the moon, and all of the other idiocy we witnessed. We read with justified derision the same op-ed column for four years, penned by Max Boot and Thomas Friedman and Charles Blow and a hundred others. Only the bylines changed, but the basic template never wavered. We watched incredulously as mobs took to the streets, egged on by the pinheads in network newsrooms.
So why are we emulating them?
Look, I understand being upset with the way the election played out. I’m not happy about it either, but it wasn’t unexpected. Part of the problem with partisanship is it can blind you to the mindset of the opposition. As much as we crave being understood by the liberals, we also fail to recognize the same fault within ourselves. Yes, the nation as a whole is riven with very real polar policy ideas. But the past 8 years have also been marked by a new phenomenon: visceral hatred for the opposition leader. And hatred is a powerful motivater.
Expecting that there wouldn’t be record turnout by liberals eager to vote against Donald Trump – a man who seems to relish hatred, judging from the way he stokes it – was being blind to reality. Make no mistake, there is a LOT of hatred for the man. All of the insanity over the last four years came, in large part, because the President exposed the dark underbelly of the left, and they were driven insane by their hatred of being exposed for what they are and the man who exposed it.
Now here we are doing the exact same thing we said was silliness wrapped up in insanity. The really crazy part of this is the President hasn’t lost his reelection bid. Yes, he has a hard road to get there. But why are we making it easier for the self-admittedly biased media to portray us as crazed lunatics? Why are we in the streets, hurling unsubstantiated charges and otherwise acting like impassioned toddlers who’ve had their Tootsie Pop® taken away?
This election is not over. There are still votes to be counted. We may not like the rules that were established in some states regarding how a ballot could be cast, or when it has to be received by the district polling office. Those are legislative fights to be fought later, not retroactively. We may worry about fraudulent ballots, but there are legal processes that allow those ballots to be challenged. Demanding vote counts be stopped or expanded, depending on current situations, is churlish behavior that reeks of desperation. Let the processes play out – it’s a little hard to pretend you’re the party of law and order if you’re disregarding election laws you don’t like.
Another thing, while we’re talking about fraudulent ballots. Undoubtedly there are some that will be uncovered by legal challenges. But will there be 35,000 in Michigan? 23,000 in Wisconsin? Hundreds of thousands in Pennsylvania and Georgia? That stretches incredulity beyond reasonableness. It would mean that the same scheme to defraud exists en masse across multiple states, with hundreds, if not thousands, of people working feverishly to not only perpetrate the fraud but then remain silent about it. It would be the greatest conspiracy of all time. The odds of successfully carrying it out are even less than that of the Russians stealing the 2016 election.
If we want to be the adults in the room, the people the rest of the country eventually trust to straighten out the mess, we need to act like it. Enough with emulating the worst traits of our political opponents. We’re better than that. It’s time to prove it.