(Bloomberg) -- Joe Biden will be one formal step closer to the presidency after Tuesday’s deadline for states to certify their slates of electors to the Electoral College -- locking in the names of the people who will formally vote to make Biden the president.
Once that happens, there’s little turning back. By law Congress must accept those electors if there’s no outstanding litigation, and it’s unlikely President Donald Trump’s legal challenges will change the outcome. Electors meet in each state on Dec. 14 to officially cast their votes.
All of the states that Biden won have certified their presidential-election results and appointed electors -- including the battleground states where Trump tried to contest the results -- after Colorado and Hawaii made their results official on Tuesday, giving Biden more than the 270 Electoral College votes needed.
Federal law says that if a state appoints its electors and all disputes are resolved by Dec. 8 -- the so-called safe harbor deadline -- Congress must consider them “conclusive” when it meets in a joint session on Jan. 6 to tally the votes.
Normally, the deadline passes without much notice. But this year, Trump has refused to concede despite Biden’s clear victory with 306 Electoral College votes, the same as Trump had in 2016. Trump and his allies have claimed, without evidence, that the election was “rigged” and that he actually won.
There is still pending litigation in Wisconsin and some other states that could threaten the safe harbor status, but the Biden electors are valid even if the lawsuits aren’t resolved until after the deadline, said Edward Foley, a professor and director of an election-law program at Ohio State University, who has studied disputed elections.
As long as there is only one submission of electoral votes from a state, Congress must accept it unless it’s rejected by both chambers -- which isn’t going to happen, Foley said. Congress can still accept a submission that lacks safe harbor status, he said.
“They won’t jeopardize Biden’s inauguration, and they’re not going to jeopardize the ability of the electors to meet and cast their vote,” Foley said of the outstanding suits.
Flurry of Cases
Lawsuits filed by the Trump campaign, led by his lawyers Rudy Giuliani and Jenna Ellis, plus cases brought by Republican groups, have largely been rejected for a lack of evidence.
On Tuesday, the U.S. Supreme Court rejected a request by Pennsylvania Republicans led by U.S. Representative Mike Kelly for an emergency order to nullify the commonwealth’s vote certification on grounds the law that the Republican-controlled legislature passed in 2019 to expand mail-in voting is unconstitutional. The rebuff came without explanation and with no noted dissents. It marks the first time the full high court has weighed in on efforts by Trump and his allies to overturn the election.
“Dozens of courts have rejected Trump and his allies’ debunked and merit-less claims, and now the highest court in the land has joined them — without a single dissent — in repudiating this assault on the electoral process,” Biden campaign spokesman Michael Gwin said. “This election is over. Joe Biden won and he will be sworn in as president in January.”
The president’s campaign and his allies are 1-51 in post-election litigation, according to a count from Democratic lawyer Marc Elias, and many legal experts don’t expect litigation will overturn results -- especially now that they have been certified in the contested battleground states.
Even so, several election lawsuits are outstanding and continue to be filed. In Wisconsin, Trump’s campaign refiled a complaint in state court on Monday over vote tallies in two heavily Democratic counties -- days after the state’s Supreme Court rejected the president’s attempt to take his challenge over mail-in ballots directly to that court.
Republican-led challenges in Pennsylvania state court are further along but have failed to gain traction. And two federal lawsuits seeking to decertify Biden’s wins in Michigan and Georgia, filed by former Trump campaign lawyer Sidney Powell, fizzled on Monday. Judges are also weighing whether to dismiss Powell lawsuits in Arizona and Wisconsin.
Republicans have also asked the Supreme Court to rule on a Republican lawsuit challenging Pennsylvania allowing ballots mailed before Election Day and received within three days to be counted. But the court hasn’t said whether it would take that case, and it only involves about 10,000 ballots -- not enough to affect Biden’s winning margin of more than 80,000 votes.
Texas Attorney General Ken Paxton said he’s suing Georgia, Michigan, Pennsylvania and Wisconsin directly in the U.S. Supreme Court in a long-shot bid to challenge the results by accusing the states of using the pandemic to pass last-minute changes to mail-in voting and sidestepping federal and state election laws. But legal experts say the Texas case has no chance of being heard by the court.
Electoral College
Giuliani and Ellis have also been meeting with Republican lawmakers in the contested battleground states encouraging them to ignore the vote totals for Biden on grounds the election has “failed” and to appoint electors for Trump who would compete with the Biden slates. So far, officials have declined.
It’s not unprecedented for election contests to last beyond the safe harbor deadline, Giuliani and Ellis said in a statement. “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,” the attorneys said.
Trump has also stepped up his personal appeals to state-level Republicans to help overturn the election after Republican leaders in Pennsylvania, Arizona, Georgia and Michigan have said it would be illegal for them to ignore the outcome of the Nov. 3 election in their states.
The president called Republican Pennsylvania House Speaker Bryan Cutler twice in the past week after also speaking to Republicans in Georgia and Michigan about trying to overturn the election results. One of the things discussed with Cutler was appointing a rival slate of Trump electors, and the speaker made it clear to Trump that can’t happen, spokesman Mike Straub said.
But Cutler was among 75 Republican state legislators in Pennsylvania who signed a Dec. 4 letter to the commonwealth’s congressional delegation urging lawmakers to object to the votes from the Biden electors when Congress meets in a joint session on Jan. 6 to tally the electoral votes.
Republican Representative Mo Brooks of Alabama has said he intends to make an objection, as Democrats tried in 2004 and 2016. But any objection must be made by both a House and Senate member -- and even if that happens, each chamber would then meet separately to discuss and vote on the objection, and it would almost certainly fail, said Alexander Keyssar, a professor at the Harvard Kennedy School who has studied the Electoral College.
“We’re going to see some little action here, but I think it’s going to be inconsequential,” Keyssar said.
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