Indeed, Trump’s foray into federal court is asking for unprecedented intervention in a presidential election, a move that would contravene basic premises of how the resolution of a dispute over presidential ballots is designed to operate.
Let’s start with the basics. Article II of the Constitution gives state legislatures the power to determine the “manner” of appointing a state’s presidential electors. State law, in other words, is supposed to call the shots.
One aspect of this principle is the authority of state law to designate state courts as the appropriate tribunals for adjudicating disputes over the counting of votes that will determine the appointment of electors.
If state courts run amok in adjudicating these disputes, clearly defying the legislature’s will, the U.S. Supreme Court may need to protect the legislature’s power from that defiance. Even so, state courts must be given the chance to implement the legislature’s will — without interference from lower federal courts.
With the Electoral Count Act in 1887, Congress established the basic procedures for litigation over votes in a presidential election. A key component of the law, colloquially called the “safe harbor" provision, specifies that Congress will consider “conclusive” the “final determination” of “any controversy or contest concerning the appointment” of a state’s electors if two conditions are met.
First, this “final determination” must be made using the state’s “judicial or other methods or procedures” adopted by state laws on the books before Election Day. In other words, no changing the rules or procedures for counting ballots after they have been cast. Second, “such determination” must occur within five weeks of Election Day. With the 2020 election, that means Dec. 8.
If a state meets those two conditions, its “final determination” regarding matters involving electors will be deemed “conclusive” by Congress. The Supreme Court so ruled in Bush v. Gore when it refused to permit any recount to continue after the safe-harbor deadline, which was Dec. 12 that year.
What the Trump campaign is trying to do in the federal courts could severely jeopardize the chances that Michigan, Pennsylvania and Wisconsin will meet the two necessary conditions to maintain their safe-harbor status with Congress.
In this post-Election Day period, if a lower federal court orders a state to change its vote-counting procedures, that would explode one of the safe-harbor conditions that the state must meet. And if a lower federal court halts a state’s vote-counting process, even if only temporarily, the delay risks causing the state to miss the Dec. 8 deadline, the other safe-harbor condition.
Even without interference from lower federal courts, five weeks is not a lot of time to complete all the work that may be necessary in a disputed election — as Florida, and the nation, learned in 2000. Canvassing returns and dealing with possible recounts and litigation take time. The Florida dispute 20 years ago reached the five-week deadline unable to finish a recount even without meddling from a lower federal court; Bush v. Gore went to the Supreme Court with the appeal of a state court ruling.
Clearly, the Trump campaign is hoping its attempt to involve lower federal courts will cost Michigan, Pennsylvania and Wisconsin the safe-harbor distinction for Congress to accept their election results. If that happens, the states would lose the benefit of the congressional pledge not to second-guess their popular-vote tallies when Congress meets on Jan. 6 to officially declare the presidential winner. Trump may dream of an Electoral College derailment that could give him a second term, but a state’s electors pledged to President-elect Joe Biden still could meet on Dec. 14, the designated day for the electoral college to vote for president, and still send their votes for Congress to count on Jan. 6. The federal-court ploy thus should fail, no matter what.
Trump has trampled too many norms and precedents already. Federal judges — including, and perhaps especially, any constitutional originalists on the bench — should decline to involve themselves in this cynical, unprecedented legal ploy. How a state’s ballots are counted is up to that state’s legislature and courts. The Constitution and Congress are clear on that matter, even if the Trump campaign is not.