At NR, we’ve been writing and internally noodling over Texas’s attempt to get Joe Biden’s victory in the presidential election overturned by suing four other states – see, e.g., our editorial, and postings by Jim, John, Kevin, Robert, and me on the homepage.
One issue that we haven’t hit yet, though I think Rich and I are going to talk about it on the podcast today, is the firmness of the election deadlines. The federal “safe harbor” day (when the federal government considers state certifications final) was Tuesday (December 8). The Electoral College votes in the states on Monday (December 14), Congress meets to count the votes (and debate any objections to them) on January 6, and the next presidential term starts on Inauguration Day (January 20).
The proposed Texas lawsuit (it’s “proposed” because the Supreme Court would have to agree to consider it – doubtful) assumes that the justices may blithely ignore these dates. For as long as it takes to litigate state Attorney General Ken Paxton’s claims, Texas would have the Court stay the Electoral College and congressional proceedings necessary to elect a president. The thinking appears to be that the only date that matters is January 20, because that is fixed in the Twentieth Amendment to the Constitution as the date (at noon thereof) when the current presidential term expires.
This is wrong. The other election deadline dates trace to the Constitution, too.
In Article II (section 2) and the Twelfth Amendment, Congress is empowered to establish the process and dates for setting the Electoral College vote and later counting that vote at a joint session of Congress. There is nothing in the Constitution that gives the Supreme Court a check on this congressional power. Congress has set these dates by statute – see Title 3, U.S. Code, Section 5 (safe harbor), Section 7 (Electoral College vote), and Section 15 (counting the electoral votes in Congress).
The Supreme Court is well aware of this. The best indication we have of that is Bush v. Gore. As we’ve noted on the podcast, that case was decided on December 12, 2000. Under the formula prescribed in the aforementioned Section 5 of federal election law, December 12 was the safe harbor day in 2000. As the Bush v. Gore majority asserted, it was necessary to bring the Florida controversy to a close because “that date is upon us.” Far from seeing itself as at liberty to ignore the dates Congress had set pursuant to it plenary constitutional authority, the Court stressed:
None are more conscious of the vital limits on judicial authority than are the members of this Court, and none stand more in admiration of the Constitution’s design to leave the selection of the President to the people, through their legislatures, and to the political sphere.
At the Washington Examiner, my friend Quin Hillyer observes that the Trump campaign (and derivatively, it seems to me, Texas) has taken the position that the congressionally mandated dates can be moved based on Justice Ruth Bader Ginsburg’s Bush v. Gore opinion. What the campaign fails to mention, however, is that Justice Ginsburg’s opinion was a dissent, on an issue she decisively lost, 7-2 – with even two of the liberal justices (Stephen Breyer and David Souter, who joined her in dissenting from the ultimate ruling of the case) conceding that the Court was obliged to follow the dates set by Congress.
Those dates are firm. The current Supreme Court, I believe, would be even less inclined to disturb them than the Supremes of 20 years ago – more testament to the theme of Rich’s column today: Contrary to the Left’s caricature, conservative constitutionalist judges follow the law and the limits on judicial power; they don’t contort them to achieve the political policy result that conservatives or Republicans might prefer.
We are in the safe harbor period, and the Electoral College is going to vote on Monday. The high court is not going to presume to undo any state’s certification or postpone the vote.