'Safe harbor' deadline underscores futility of Trump challenges to 2020 election

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PHILADELPHIA (KYW Newsradio) -- Tuesday is "safe harbor day," a little-known Electoral College deadline that all but seals the 2020 presidential election for Joe Biden, while even further decreasing the chance of success for any legal challenges by the Trump campaign.

Safe harbor is based on federal law from 1876, "which was hotly contested, bitterly divided," said Villanova law professor Michael Moreland.

In that year, Rutherford B. Hayes lost the popular vote but won the White House because of contested election results in a handful of states.

Moreland says the safe harbor law was established as a way to ensure a more orderly counting of electoral votes.

“If a state has certified its results and has appointed electors, then under federal law those electors must be counted by Congress," Moreland said.

Still, some Republicans in the Pennsylvania House have called on the state's congressional delegation to object to electors when they meet on Jan. 6.

Moreland notes there were attempted objections by some Democrats following the 2016 election, but each was quickly overruled by then-Vice President Joe Biden, who replied to one of those attempted objections by saying, "It’s over." That drew a standing ovation from Republicans.

Moreland says it also means any remaining Trump campaign court challenges have even less chance of success, and he notes there’s been no basis for repeated claims of "judicial activism."

University of Pennsylvania law professor Claire Finkelstein says it’s still legally, technically, conceivable that a court could order a change after safe harbor.

"But past the safe-harbor deadline, to say, 'Well, now we’re asking you not only to halt the certification but to reverse it past a hard and fast deadline which is written into federal law,' makes it that much more difficult," she said.

Regarding the Trump campaign's numerous lawsuits, Finkelstein says it’s important to differentiate between the rhetoric of rampant fraud going on outside the courtroom and the actual substance of the challenges that are put before a judge.

"The subject of the lawsuits and the claims about fraud don’t match up," she said. "Rudy Giuliani made that very clear when, having conducted various press conferences talking about fraud in the election, he was then asked by a Pa. judge where the fraud was. Since that wasn’t even alleged in the court filings in that particular case, he had to admit: Well, this is not a fraud case."

She says the legal system seems to be holding up to the task, but she says she worries that professional standards among lawyers are being ignored.

"I’m concerned if this kind of litigation terrorism becomes a standard aftermath after every election."