Supreme Court Puts a Damper on Trump Election Challenge

Conservative justice has case on schedule to peter out

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December 4, 2020

Scheduling gamesmanship could smother a last-ditch appeal from Pennsylvania Republicans in the Supreme Court.

Allies of President Donald Trump asked the justices Thursday night to void the state's certification of election results and bar the governor from transmitting the returns to Congress. Justice Samuel Alito, who manages emergency matters from Pennsylvania, seems to have put the case on a path to peter out on its own.

Two deadlines loom over the dispute. The first is the Dec. 8 "safe harbor" deadline. The second is Dec. 14, when electors will meet to cast electoral votes. Those dates are set in a federal law called the Electoral Count Act.

If a state has finalized its election results by the safe harbor deadline—as Pennsylvania has—the law says that determination "shall be conclusive, and shall govern in the counting of the electoral votes," meaning Congress must accept their slate of electors.

Alito asked Pennsylvania to file legal papers addressing Thursday's request by 4:00 pm on Dec. 9, one day after the safe harbor date. It's not clear that legal challenges to Pennsylvania's results will be viable at that point.

The safe harbor came into play in Bush v. Gore. The majority said the deadline, only hours away, made it impossible to set recount procedures that comply with the Constitution.

"That date is upon us, and there is no recount procedure in place ... that comports with minimal constitutional standards," the decision reads.

Republicans will file a final brief on Dec. 10, at which point the full Court would be ready to review the case. That's just four days before the Electoral College will cast its votes. Four days is enough time for the justices to intervene if they are so inclined—and if they think the safe harbor deadline can be set aside. But it is not unusual for emergency appeals to linger on the docket for days once legal papers are submitted.

Once the Electoral College casts its votes, the Trump legal team may be at a dead end.

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