Editor’s Note: Elie Honig is a CNN legal analyst and former federal and state prosecutor. The views expressed in this commentary are his own. View more opinion on CNN. Watch Honig answer readers’ questions on “CNN Newsroom with Ana Cabrera” on weekends.
Most years, December 8 is fairly meaningless date — not a holiday, not an immediately recognizable anniversary of a historical event, but just another day on the calendar. But this year, December 8 marks the federal election “safe harbor” date and with it, an effective end to the increasingly madcap, unhinged effort of President Donald Trump, his campaign and his supporters to challenge the results of the 2020 election.
Understanding the federal safe harbor date, and its importance to our constitutional transition of presidential power, requires a bit of counting backwards. The Constitution requires that the presidential term ends precisely at noon on January 20. Leading up to that date, federal law provides that the Electoral College formally votes on “the first Monday after the second Wednesday in December” – this year, December 14. Those electoral votes then must arrive in Washington, DC, by December 23 (this dates back to when it took more than a phone call or click of a button to transmit information over long stretches) and Congress formally counts the electoral votes on January 6.
That brings us to the safe harbor date. Under federal law, any state’s selection of its presidential electors that has been finalized six days before the formal Electoral College voting date (this year, December 14) is final and presumptively cannot be challenged in court or in Congress. In other words: come December 8, the determinations of the states cannot effectively be challenged – by Trump or by his “elite strike force” legal team led by Trump attorney Rudy Giuliani. The states are not required to finalize their electoral votes by the safe harbor date – but if they do, those determinations are protected by federal law.
That doesn’t necessarily mean that Team Trump’s barrage of pointless, doomed lawsuits will suddenly end (though it should). Ever since it became clear that President-elect Joe Biden had won the election, Giuliani and the rest of Trump’s legal team have thoughtlessly fired off lawsuits utterly without regard to facts and the law — two things that tend to matter in courtrooms. And though federal law provides that a state’s determination made by the safe harbor date “shall be conclusive,” why would Giuliani and company start respecting the law now?
But the arrival of the safe harbor date should effectively extinguish any dying embers of hope even for the last few remaining election denialists. And what an utter disaster — legally and otherwise — the Trump team’s effort to contest the election in the courts has been. The lawyers for Trump and his campaign have had more than 30 lawsuits thrown out or withdrawn from courts across the country almost as quickly as they’ve been filed. It’s tough to identify any one particular low point, but I’ll go with the federal district court judge who characterized one of Giuliani’s federal lawsuits as “Frankenstein’s monster.”
The end of these lawsuits is a good thing for anybody who cares about our constitutional process, a smooth transition of power and rule of law. And maybe it’s a good thing even for Trump, Giuliani and the rest of those who continue to have visions about overturning the 2020 election. Realistically, it’s been over for a while; and now, it’s over formally and legally as well.
Now, your questions
William (Washington): Is there a legal process to get rid of the Electoral College?
The Electoral College — the system by which each state casts votes for president based on its total number of US senators plus US representatives — is embedded in Article II of the Constitution. Thus, the only way to get rid of the Electoral College is to amend the Constitution, a laborious process that requires approval from two-thirds of the US Senate, two-thirds of the House of Representatives and then ratification by three-fourths of all states (38 of the 50 states). (There are other even more complex ways to amend the Constitution as well).
Given that the Electoral College tends to benefit less-populated states, it seems extremely unlikely — even if Congress could reach two-thirds majorities in both houses — that the necessary three-fourths of states would approve an amendment abolishing the Electoral College. While the Electoral College is unpopular with a majority of the American public, it likely is here to stay.
Marc (Virginia): If a president pardons a person who might have incriminating information against him, doesn’t the pardon recipient lose his Fifth Amendment right against self-incrimination, and can’t he then be forced to testify?
Theoretically, perhaps, but practically, don’t bank on this. A presidential pardon recipient could not invoke his Fifth Amendment right against self-incrimination with respect to the conduct for which he has been pardoned; there is no risk of self-incrimination if he cannot be charged. But that only applies to potential federal charges. A presidential pardon does not cover state crimes, so a pardon recipient could still take the Fifth and refuse to testify based on potential state-level criminal exposure.
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And, as a practical matter, it is exceedingly unlikely that recent recipients of presidential commutations and pardons — Roger Stone and Michael Flynn, respectively — would suddenly cooperate with authorities against the President. Both had ample opportunities to do so before, yet failed to do so successfully, at their own peril. Don’t hold your breath waiting for either to have a change of heart now.
Mihaela (Canada): If one justice recuses himself or herself from a decision and the vote ends up 4-4, what happens?
A tie in the Supreme Court means the lower court’s ruling — whether from a federal court of appeals or a state supreme court — remains intact. This happened recently when the Supreme Court split 4-4 (with Justice Amy Coney Barrett not yet participating) on whether to block a Pennsylvania Supreme Court ruling allowing state officials to count ballots that arrive up to three days after November 3. Given the tie vote in the US Supreme Court, the Pennsylvania court’s ruling stood.