Correcting Misunderstandings about the Dec. 8th “Safe Harbor” Date in Federal Law

We are going to see mistakes about this, as in this recent story from an otherwise good Politico journalist.

Normally I would not call something like this out, but this is important and we need journalists and others to get this right now, before misunderstandings sink in: States are not required to certify their results by Dec. 8th, the safe-harbor date. It is wrong to report that States “must” certify their results by this date.

The Dec. 8th date in federal law is an offer, not a requirement: If a State certifies by then, federal law says Congress will then “conclusive[ly]” presume that slate to be valid. But States are free to certify their results after Dec. 8th. The Electoral College does not vote until Dec. 14th. If a State submits a single slate, even after the safe harbor date, Congress is to accept that slate unless both chambers — in the newly elected Congress — vote to reject it.

I blogged about this back in July, referencing a piece that Derek Muller wrote on the issue:

In this short piece, Derek Muller makes an important point: the Supreme Court did not hold, in Bush v. Gore, that the Electoral Count Act mandates that all state counting or recounting processes in the presidential election must end by the so-called “safe harbor” date in the Act. Instead, the Court (rightly or wrongly) interpreted Florida law, as construed by the Florida Supreme Court, as reflecting a state policy that such processes end in Florida by that date. . . .I’ve urged, along with others, that Congress move back this date in light of that. But especially if Congress does not do that, it’s important that Derek has clarified this point well in advance of any context in which it might become significant.

Here is the problematic passage in that Politico story:

All states are under a set time frame to sort through all the anticipated 2020 mail-in ballots.

By Dec. 8, each state must certify its results to Congress, giving each only five weeks to navigate any disputes and recounts.

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