Trump’s Gambit to Overturn States’ Election Results Is Running Out of Time
(Bloomberg) -- Joe Biden is moving closer to formally claiming the White House as states push ahead with certifying election results despite Donald Trump’s efforts to challenge the vote.
Although Trump’s campaign and his supporters have mounted legal challenges, Georgia is on track to certify its election results on Friday, with Michigan, Pennsylvania and Nevada expected to follow next week, Arizona by Nov. 30 and Wisconsin by Dec. 1. Unless courts intervene, validation by those states would make it difficult for Trump to continue to claim that he, and not Biden, won the presidential election.
“This is going to be a series of dominoes that fall sort of ineluctably toward the conclusion that we already know is true, which is that Biden is the winner of these states and is the president-elect,” said Richard Pildes, a New York University professor of constitutional law. “This will be the formal legal step that cements that.”
States make their election results official through a certification after what’s known as a canvass to account for every ballot cast and to confirm that every valid vote was counted, according to the U.S. Election Assistance Commission. Procedures and deadlines for certifying votes vary by state.
Certified totals can change if a state allows recounts after certification, which Georgia, Michigan and Nevada do, or if there is a challenge to the election. But certification amounts to a declaration of a winner, and the winning candidate will assume office unless a court intervenes, said Michael Morley, an assistant law professor at Florida State University who’s worked on election emergencies and post-election litigation.
Certification is also important because it triggers the appointment of state electors to the Electoral College. Votes for a presidential candidate are actually for that candidate’s slate of electors, and certified results allow the state’s executive -- typically the governor -- to send “certificates of ascertainment” to the archivist of the United States listing the names of the electors appointed and the number of votes cast, according to the Congressional Research Service.
Trump’s campaign or his Republican supporters have sued to stop certification in Pennsylvania, Michigan, Georgia and Arizona citing election irregularities but without evidence of widespread fraud. The two Republicans on a board in the Michigan county that includes Detroit also initially refused to certify results on Tuesday before reversing their decision amid public outrage.
If a state fails to certify its results by Dec. 14, when the electors to the Electoral College meet in each state, there’s a risk some those votes might not be counted when Congress meets on Jan. 6 to tally the results from each state, said Edward Foley, a professor and director of an election-law program at Ohio State University who has studied disputed elections.
Foley said Biden electors could still meet on Dec. 14 and cast their votes even if results haven’t been certified, but the certification provides more certainty -- especially if results are certified and all recounts and legal challenges resolved before Dec. 8, the so-called “Safe Harbor” deadline when Congress must presume them to be valid.
Delaying certification could also open the door to Republican legislatures in Pennsylvania and other battleground states appointing their own slate of electors for Trump on grounds the election failed, as some Republicans and conservative commentators are advocating. But state Republican leaders have said they’re not doing that, and legal experts doubt it’s a realistic option.
Trump filed for a recount of two largely Democratic counties in Wisconsin on Wednesday, and Wednesday night is the deadline for Georgia to finish a hand recount of its results. Trump’s campaign could also still ask for recounts in Georgia, Nevada and Michigan after the results there are certified. But Biden holds leads of about 13,000 in Georgia, 20,500 in Wisconsin, 33,500 in Nevada and almost 146,000 in Michigan -- margins that are too wide for recounts to overcome.
There could also be contests of the election, depending on state statutes. The electors pledged to Trump in Nevada filed an election contest on Tuesday to have Trump declared the winner in the state.
In Pennsylvania, an election contest must be filed by Monday by getting 100 voters to sign a court petition with five voters providing affidavits that the election was illegal. But that wouldn’t go anywhere without evidence, said attorney Lawrence Otter, who represented Green Party presidential candidate Jill Stein in 2016 when she filed a contest petition but withdrew it when the court set the cost at $1 million.
“Based on what they’ve done in other court proceedings, they have no evidence,” Otter said of the Trump campaign. “They’ve got grand tales of conspiracy.”
©2020 Bloomberg L.P.