Mainstream media and social media legal “scholars” have been celebrating a decision by Justice Samuel Alito. After accepting U.S. Congressman Mike Kelly’s petition challenging the results of the presidential election, Justice Alito set a deadline of December 9th for the state to respond. It’s a conspicuous date since the so-called “Safe Harbor” date for picking electors is December 8th.
This has been interpreted by nearly everyone as an indication the Supreme Court does not want to get involved with the election shenanigans, and that very well may be the case. But in this particularly scenario, it would behoove a reluctant Supreme Court to act quickly and decisively if they do not want to get involved because this petition has many challenges. It’s likely to be thrown out, as lower courts have, because the decisions in question have been in place for months but Pennsylvania Republicans did not act until after President Trump appeared to lose. This calls into question their motivation and resolve; a quick dismissal by the Supreme Court would play towards their perceived stance of not wanting to get involved.
By slow-playing this petition, it’s very possible Justice Alito is giving Republicans an open door to contest not only the election results but the electors as well. Below is the provision for “Safe Harbor” in which I highlighted two relevant pieces of information. From Congress.gov:
December 8, 2020: The “Safe Harbor” Deadline – The U.S. Code (3 U.S.C. §5) provides that if election results are contested in any state, and if the state, prior to election day, has enacted procedures to settle controversies or contests over electors and electoral votes, and if these procedures have been applied, and the results have been determined six days before the electors’ meetings, then these results are considered to be conclusive, and will apply in the counting of the electoral votes. This date, known as the “Safe Harbor” deadline, falls on December 8 in 2020. The governor of any state where there was a contest, and in which the contest was decided according to established state procedures, is required (3 U.S.C. §6) to send a certificate describing the form and manner by which the determination was made to the Archivist as soon as practicable.
Reading through Pennsylvania’s election code, there are no provisions nullifying challenges brought before the Supreme Court as grounds for the election to be considered “contested.” In other words, as long as Representative Kelly’s petition is on the docket in the Supreme Court, “controversies and contests over electors and electoral votes” have NOT been remedied nor resolved.
Again, it’s conspicuous that Justice Alito extended the response date until the day after “Safe Harbor” day. If they wanted to send a signal that the Supreme Court isn’t getting involved, they could have either not accepted the petition or they could have followed standard practices and set the state’s deadline for the 7th or earlier. By delaying it, Justice Alito has given Representative Kelly, his legal team, and others an open door to disregard “Safe Harbor” and press forward with efforts to overturn fraudulent election results.
We debated even running this story in fear that it could prompt Democrats to act. But after talking to a pair of constitutional scholars, we concluded that unless they respond ahead of the deadline AND a decision is made by the Supreme Court on or before December 8, the “Safe Harbor” rule still wouldn’t apply. If they do not respond before December 8th, it simply makes the election easier to contest.
This is, admittedly, a stretch. We also debated running the story on grounds that it may sound like some hairbrained act of desperation. Then, one of my writers sent me a video by Tim Pool who appears to have come to the same conclusion, and he’s generally more skeptical than I am about such things.
This election is not over. There are more moving parts than anyone can fully grasp, and the Supreme Court will almost certainly ultimately decide which way it all goes. Thankfully, we have five originalists on the bench to give us hope.
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