Whether it is just the weirdness of 2020 or the narcissism of the Orange Menace, this post-election period has been about key dates and events.  Over the past four weeks or so, one by one, despite unsuccessful attempts to have courts intervene to block them, states have certified the results of the presidential election, and the remaining states are set to do so on Monday or Tuesday.   Once the appropriate authority within the state has certified the results of the presidential election, the governor is to complete and mail to the National Archives a “certificate of ascertainment.”  As of today’s date, the National Archives has received just under half of these certificates.

Now normally, this process is routine.  It happens, and only political geeks pay attention.  But because Trump and his “lawyers” refuse to face reality, we are now facing an event that has only really mattered once before in U.S. history — the safe harbor date.   If a state has concluded any dispute related to electors by six days before the electors meet, the determination by the state is “conclusive.”  In 2000, the U.S. Supreme Court used this language to find that Florida wanted all election contests to end by the safe harbor date.  The 2000 election is the only time that we have faced the safe harbor date having any meaning.

But we are back in that boat again.  And this year, the safe harbor date is Tuesday, December 8.    Despite Trump’s attempt to cast this election as a repeat of 2000 with the Supreme Court intervening to decide the election if necessary, what is happening in the courts does not support that alternate reality.

At this point in 2000, the Supreme Court had already ordered (and received briefs) in Bush vs. Gore with argument set for the Monday before safe harbor day.  This year, so far, we have essentially had nothing.

There are two cases that are pending at the U.S. Supreme Court.  The first, Republican Party of Pennsylvania v. Boockvar, actually dates back to September.    This case involves the extension of time for local election authorities to receive mail-in ballots.  While the Supreme Court did issue some orders to make sure that those ballots were counted separately — in case the resolution of this issue might matter to the result — it has not yet accepted this case on the merits.  In fact, the Supreme Court did not shorten the time for Pennsylvania to respond to the request to hear the case, and the Supreme Court has not yet scheduled the case for “conference” — the weekly discussion of what cases to take.  To the extent that there is an issue in the case, it is whether the Pennsylvania Supreme Court can use the state constitution to alter the rules for a presidential election established by the state election code.

The other case was just filed this week — Kelly v. Pennsylvania.  In many ways, this case is the flip of the first case.  Representative Kelly claims that the Pennsylvania Supreme Court is somehow violating his federal rights by not finding that the new Pennsylvania laws (adopted in 2019) on absentee ballots violate the state constitution and for holding that his challenge to the application of those laws to this election was untimely when he waited until after the votes were counted to bring his challenge.  In an interesting procedural twist, Justice Alito — in his role as Circuit Justice for the Third Circuit which includes Pennsylvania — has asked Pennsylvania to respond but asked for the response to be submitted by Wednesday (the day after the safe harbor date).   (For each of the federal appellate courts, there is a “Circuit Justice” assigned to that circuit.  Any motion for emergency relief or for an extension of time to file for Supreme Court review initially goes to that justice for review.)

The short story for both of these cases is that the Supreme Court appears like it has no intention to look at these cases prior to December 8.  And once December 8 passes, unless the Supreme Court decides to ignore the decision in Bush vs. Gore, any further federal litigation is over.  The state will have certified its electors (and, as of December 14, the electors will have voted), and the decision about whether those votes should count shifts to Congress.

Now, of course, the above presumes something resembling normal processes.  And Trump has so far refused to act like a normal person.  But the courts have followed normal processes.  Up until this point, the rulings have mostly been:  1) the wrong person brought the case; 2) the case was brought in the wrong court; or 3) the claims lacked merit.  There have been some cases holding that the time for bringing certain claims had expired.  Starting Wednesday, we should start seeing the holding that the time for challenging the election in court has expired in most of the cases.  While Trump will probably rage about the gutlessness and corruption of the judges denying his claims, many of the judges making these rulings will be the very people that Trump appointed.

Because Trump is not known for his ability to accept defeat graciously, Tuesday will probably not be the end of the process.  He is already making noises about challenging the count in Congress.  While this strategy is almost certain to fail with the Democrats having the majority in the House and there being enough Senate Republicans who will not back this strategy, we will have to wait until January to see if Trump really intends to make the effort.

For now, the bottom line is that Trump’s effort to use Republican legislatures and Republican judges to overturn the decision of the voters appears to have gone nowhere.  Enough people took their oaths of office seriously and did the right thing.  While others with no direct involvement in the process have not been willing to stand up to Trump and tell  him that they are wrong, how much harm such cowardice has done is something that we will only learn over time.  But the rule of law has held for now, and that is something to be thankful for.

UPDATE

Since the original post, Justice Alito shortened the time for Pennsylvania’s response.  Under the revised order, the response was due on the morning of December 8.  On the afternoon of December 8, the Supreme Court denied Representative Kelly’s request for an immediate injunction.  Representative Kelly can still ask for the Supreme Court to take the case on the merits, but the Supreme Court is not going to interfere with the normal processes while considering any such request.

Meanwhile on December 7, Texas filed a motion for leave to file a “complaint” against Georgia, Pennsylvania, Michigan, and Wisconsin.  As a brief refresher, the U.S. Supreme Court is the trial court for disputes between the states.  But there has to be a real dispute to invoke that procedure.  And that means that Texas has to have some legal interest to defend.  The essence of Texas’s complaint is that these four states aren’t properly applying their own laws which has led to an inaccurate result to the election.  This theory is unprecedented.  Progressive almost would like the court to find that Texas has the ability to bring this type of claim because there are a lot claims that states like California and New York might want to bring against Texas for improperly applying Texas laws to discriminate against people of color.  The Supreme Court has asked the four states to respond by Thursday (mostly because like Representative Kelly, Texas has asked for an injunction precluding these states from certifying their results or having their electors meet on December 14).