As most of the world has declared Joe Biden the next president and tried to move on, the current president and an alarming number of his partisans are refusing to do so, based on vague if vociferous claims of voting fraud, involving numbers of votes insufficient to change the results in states where Biden has won or is in the lead.
How long will Donald Trump go on pursuing these doomed challenges? Nobody knows for sure; one theory is that he will never concede defeat and will flail around in public and in the courts until the ultimate deadline of January 20, 2021, when his lease on the White House expires and likely his ability to get past the sentries expires as well. But the Republicans who are sustaining him in this madness — out of respect for his fiercely loyal voters or out of fear that he will still dominate GOP politics going forward — undoubtedly are marking dates on the calendar that will soon transform Trump’s defiance from sour grapes to dangerous delusion.
The first key initial deadlines involve state certification of election results, which makes them very difficult to challenge later on. Indeed, a major purpose of the Trump campaign’s demands for recounts (which rarely if ever change the results in any but the most insanely close races) is likely to delay state certifications. Georgia’s certification deadline is November 20; Wisconsin’s is December 1. Pennsylvania requires counties to certify results by November 23; though its state-level process begins then, it has no clear final deadline. Arizona officials gather to certify votes on November 30, but may not be required to complete the process immediately.
All states do, however, have statutes addressing the process for certifying results, and in the key states still in some doubt there are bipartisan or nonpartisan limitations on what Trump’s allies can do to cook the books or delay a final result, as Vox’s Andrew Prokop notes:
In Arizona, though Republicans control the state government, Democrat Katie Hobbs, the elected secretary of state, is in charge of certifying the state’s elections. “We have no irregularities, we have no fraud,” Hobbs said last week. Nevada has a Republican secretary of state, but Biden has a lead of nearly 3 percentage points there, which looks safe.
Pennsylvania has a Democratic secretary of state as well. In Wisconsin and Michigan, bipartisan boards are in charge of certifications. All four states have Democratic governors. None of them are going to go along with Trump’s baseless claims that the election was stolen.
In Georgia, Republican Secretary of State Brad Raffensperger is under attack from fellow Republicans for refusal to play along with Trump’s fraud complaints. In general, there’s no clear path for the Trump campaign to delay certifications perpetually, and no real prospect for him to pull ahead in states sufficient to give him 270 electoral votes and the presidency.
If there is a struggle over certification of state results, it all comes to an end by December 8, the so called “safe harbor deadline” set up by Congress in 1877 to cut off any challenges to state selection of presidential electors when they are subsequently counted in Congress. If a state hasn’t certified results by then, you could see multiple slates of electors present themselves to the Electoral College when it virtually meets six days later, on December 14, and the dispute might ultimately have to be resolved by Congress. But that’s all very unlikely unless (a) federal or state courts put a hold on certification of results for some hard-to-imagine reason, or (b) Republican-controlled state legislatures defy their own laws and seek to usurp the selection of presidential electors, ignoring the popular vote in their states.
This last possibility has gotten a lot of attention, mostly because presidential surrogates like Donald Trump Jr. have called on legislators to do just that, with some vague encouragement from Republican elected officials like Lindsey Graham. But so far there does not seem to be any appetite for a coup among the legislators themselves, particularly in Pennsylvania, the state that put Biden over the top on November 7.
If the key states do meet the “safe harbor deadline” and the Electoral College duly records a victory for Biden on December 14, that should be the ballgame. If any state has managed to muddy the waters about its choices, however, there’s a final stage in the process on January 6, as I explained in September:
According to the constitutional scheme, the President of the Senate, who would be current Vice-President Mike Pence, would “announce” the votes to a joint session of the newly elected Congress [on January 6]. The [1877] Electoral Count Act clearly expects the states and ultimately Congress (barring a contrary vote by both Houses of Congress, gubernatorial certifications are supposed to be recognized), not the veep, to decide which slate to announce, but if Pence were to only announce Trump-Pence slates citing his constitutional prerogatives, it’s unclear what would happen. Again, the constitutionality of the ECA has never been tested. And the effect of its provisions governing disputed slates would totally depend on which party controlled Congress, and which party controlled the governorship of the affected states.
It’s worth noting that the two Senate runoff elections in Georgia that would determine control of that chamber will be held the day before Pence stands to announce 2020 electoral votes.
All in all, the odds of Trump being able to pursue a 2020 election challenge into 2021, with his party at the federal and state levels unanimously behind him, are very limited. There’s almost certainly not enough evidence of electoral irregularities to overturn Biden’s victories within individual states, and not enough raw political and judicial power for Republicans to defy federal and state laws and pull off an electoral coup early next year.
Republicans need to convince Trump to give up the challenge, not simply wait for his eviction on Inaugural Day. There’s some talk in the air that Trump needs to concede in order to maintain his credibility and party leadership in case he decides to run again in 2024. In other words, he can’t play Napoleon returning from Elba in triumph until he accepts his prior exile. The real deadline for Trump’s surrender to reality is the moment leaders of his party throw up their hands and cry: Enough!
