President Trump’s long-shot bid to overturn the 2020 election results hit a wall Tuesday afternoon when the Supreme Court ruled against an effort led by Pennsylvanian Republicans to declare the state’s mail-in ballots unconstitutional. The decision came out just hours before the so-called safe harbor deadline, effectively killing Trump’s ability to dispute President-elect Joe Biden’s win in the high court.
The safe harbor deadline, the last day for states to name electors who cannot be challenged by Congress, was set this year for Dec. 8 and represents the last possible chance for state courts to intervene on Trump’s behalf. And, while the Trump campaign has stated that it will soldier on past that date, the Supreme Court has never considered any challenges after it.
The court paid special attention to the date this year. Justice Samuel Alito on Sunday changed the requirements for Pennsylvania to respond to an election challenge so that the case could fall within the safe harbor deadline’s bounds. In the case, which the Pennsylvania Supreme Court rejected last week, Republican Rep. Mike Kelly alleged that mail-in ballots violated the state Constitution and requested that the results be thrown out. Pennsylvania’s response date had previously been set for Wednesday, leading many to speculate that the court had no intention of seriously considering Kelly’s challenge.
But Alito’s move gave Trump supporters hope that the court will consider the case just hours before time runs out. Texas Sen. Ted Cruz on Monday offered to deliver oral arguments in favor of the challenge if the court took it up.
The situation is similar to the last time the safe harbor deadline played an important role in election disputes — when the court cited it in calling the 2000 election in favor of George W. Bush. Then, the court heard Bush v. Gore the day before the safe harbor deadline and decided the case on the day itself. In the unsigned majority opinion, the court pointed to the safe harbor deadline as the reason why Florida, where the election hung in the balance, could not initiate another recount.
“In light of the inevitable legal challenges and ensuing appeals to the Supreme Court of Florida and petitions for certiorari to this Court, the entire recounting process could not possibly be completed by that date,” the court wrote, ensuring that Bush would win the election.
In the 2020 election, the Trump legal team has not run as close to a win as former Vice President Al Gore’s team did in 2000. And as the safe harbor date has a long, confusing history, Trump’s partisans have pointed out that the statute is not a constitutional provision, but rather a law established after the disputes in the contested election of 1876 spilled over into the next year and into Congress’s hands. The law to prevent similar conflicts in the future was not established until 1887, when Congress agreed not to consider election disputes after a certain date.
This year, the Electoral College does not vote until Dec. 14. Nearly every state has certified its electoral results. These results, showing a Biden victory, will become final at the end of the day, barring a Supreme Court intervention in Kelly’s Pennsylvania case. And even if the court does reject that challenge, Trump supporters plan to continue appealing to the body beyond Tuesday.
“We do not consider the passage of that date as precluding relief by the court as to the 2020 presidential election,” Greg Teufel, an attorney representing Kelly in the Pennsylvania case, told the Washington Examiner.
At the same time, Trump on Monday seemed to acknowledge the narrowing possibility of a win while he was presenting the Presidential Medal of Freedom to Olympic wrestler Dan Gable.
“You know, in politics, I won two, so I’m 2-and-0. And that’s pretty good, too,” Trump said, soon adding: “But we’ll see how that turns out.”
The Trump campaign, for its part, is rejecting the whole notion of a safe harbor deadline coming and going on Tuesday.
Jenna Ellis, a senior legal adviser to the Trump campaign, told Fox Business, “Although we have the safe harbor deadline today, and we have the meeting of the Electoral College next week on Dec. 14, the ultimate date of significance is Jan. 6.”
“While we are on some tight constitutional deadlines, we still have plenty of time to make sure the election and the outcome is free and fair for all Americans,” she said.
Ellis and Rudy Giuliani, Trump’s top attorney, said on Tuesday that they plan to push their election disputes all the way to Biden’s January inauguration.
“The only fixed day in the U.S. Constitution is the inauguration of the President on January 20 at noon,” they 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.”
