Election 2020 Safe Harbor

Safe Harbor

AFTER you cast a ballot, and BEFORE the Electoral College votes, there’s another critical part of the electoral process in a presidential election.

How states reach “safe harbor.”

BACKGROUND

• Before Election Day: Each state’s political parties nominate electors (Electoral College members).
• Election Day: When you vote, you’re actually voting for a slate of electors who pledge to vote for the candidate of the party who nominated them.
• After Election Day: States use popular vote results to appoint electors.
• December 14th: The 538 appointed electors vote – majority (270) wins.

The “Safe Harbor” Deadline

• States have several weeks to confirm and certify federal election results.
• During this time, the state government, campaigns, or citizens can take action — such as auditing results, presenting legal challenges, requesting recounts.
• States must finalize results & name voting electors (chosen by the winning party) 6 days before the Electoral College votes in order for the results to be deemed “conclusive.”

Why It Matters:

“Losing the safe harbor protection leaves Congress to decide which electors to count from a state, without mandatory deference to the preferences of either the state’s voters or legislature.”

National Task Force on Election Crises explaining the stakes of meeting "safe harbor" requirements 6 days before the Electoral College votes. The federal "safe harbor" law dates back to 1887.

Something To Consider:

• Some call the 1887 Electoral Count Act a “morass of ambiguity.”
• The law requires electors to vote 41 days after an election (this year, it’s Dec. 14th, which means electors have to be appointed by Dec. 8th for “safe harbor” protections).
• If disputed results in the states still exist, the new Congress can play a role in resolving those contests. This has never happened in modern history.

BIG PICTURE: 2020

• The Constitution allows citizens, states, and campaigns to challenge federal election results over a period of time before the Electoral College votes.
• The Trump campaign can levy legal challenges, request recounts.
• States can proactively audit results in order to meet their safe harbor deadlines and “protect” their electoral votes from federal intervention.

Congress played a role in deciding a presidential election in 1876 – which led to the creation of the “safe harbor” law for states. Legal scholars interpret electoral law differently, which is why you might see several scenarios if states can’t confirm results by Dec. 8. We’ll humbly wait and see what happens next.