In accordance with the U.S. Constitution and Electoral Count Act of 1887, Dec. 8, known as “safe harbor” day, stands as the last chance for states to finish handling any disputes — such as recounts or audits — over election results and still have their votes protected under the law.
Federal law mandates the resolving of any issues regarding the election results six days before the Electoral College formally casts its electoral votes for the presidency. This year, the Electoral College begins voting on Dec. 14, and electorates must have their ballots submitted to Washington, D.C. by Dec. 23. Afterwards, Congress must formally count each electoral vote on Jan. 20, 2021.
With this, state judiciaries most likely cannot hear any new litigation contesting the results of the presidential election after Dec. 8. Any decisions which alter the results of the presidential election after the “safe harbor” date may cause states to run the risk of their electoral votes no longer being protected by federal law. In the 2020 presidential election, ongoing litigation in states like Arizona, Georgia and Michigan, to name a few, could have been prohibited from certifying their electoral votes under “safe harbor” protections if they did not meet the Dec. 8 deadline.
When passed by Congress in 1887, the Electoral Count Act reflected on the 1876 presidential election between President Rutherford B. Hayes and Samuel Tilden. In this election, four states had sent electoral votes to Congress from two different sets of electorates. The Electoral Count Act of 1887 ensures that issues like this would not happen again and that there would be strict guidelines for when and why a state must submit their electoral votes.
However, if the state cannot meet the “safe harbor” deadline, but has selected electors by the voting date of Dec. 14, the electoral votes may still be included in the Congressional counting process if the state certifies its respective votes.
Litigation can continue on and after the “safe harbor” date; however, it may not receive a day in court. On Dec. 8, the Supreme Court refused to hear a case presented by the GOP that asked the Court to overturn President-Elect Joseph R. Biden’s win in Pennsylvania.
On Dec. 9, all 50 states and territories certified the results of their respective presidential votes. According to projections, Biden seems to have won 306 electoral votes, whereas President Donald J. Trump seems to have won 232 electoral votes. In order to win the office of the presidency, a candidate must receive a minimum of 270 electoral votes out of a total of 538 votes.