Justice Alito Slow-Walks Rep. Kelly’s Pennsylvania Emergency Petition, Requiring a Response from the State on Dec. 9, After the Safe Harbor Deadline: What Does It All Mean?

Although it is not yet reflected on the docket, Justice Alito has reportedly set a deadline of December 9 for the state of PA to respond to Rep. Kelly’s petition seeking to nullify the vote in Pennsylvania (a petition I expect to easily fail).

Justice Alito could have simply denied the petition, which is what I had expected given its lack of merit, but he asked for a response and after receiving the response he can either decide the matter himself or send it to the Court. He gave a relatively long deadline for a response, and the specific date of Dec. 9 is significant.

The timing here matters. Any final determination of the slate of electors made in a state by the so-called “safe harbor deadline” under the federal Electoral Count Act is entitled to be conclusively accepted as valid by Congress. This year that deadline is Dec. 8. The electors themselves vote on December 14. By setting the deadline for a response as December 9, this means that the Supreme Court won’t act until well after the safe harbor deadline has closed, making it even less likely that the Supreme Court would overturn the results in Pennsylvania.

The Court could conceivably act between Dec. 9 and Dec. 14 and the matter would not be technically moot. (I think it would be moot after Dec. 14 has passed). But back in Bush v. Gore, a key reason the Court refused to remand the case to the Florida Supreme Court to order a recount was the idea that Florida wanted to take advantage of the safe harbor deadline, which was the very day the Court decided Bush v. Gore. The Supreme Court would not easily mess with deciding something about electors after that date under the best of circumstances.

Speaking more generally, courts are going to be very reluctant to mess with the safe harbor deadline. That’s why today’s ruling in the Wisconsin Supreme Court refusing to take up the Trump Campaign’s election challenge and directing it back to the lower courts is so significant too. Every day that passes makes any judicial action less and less likely.

To be clear, I don’t see a path for Trump to use court cases to overturn the election results in even one state, much less the three states he would need at a minimum to get a different result in the electoral college. But as the clock ticks down, those tiny chances fade into nothing.

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