Safe Harbor | WisCommunity

Safe Harbor

December 8, 2020 - 4:06pm
ballot box

Most Wisconsinites assumed once they had marked their ballot and had it counted that the process was well underway. Then the votes were counted, and we all thought we were done. Not this year.

This election cycle has been beset with lawsuits filed across the country that in one way or another insisted that the election was unfair, and ballots should be tossed out, or in the case of a few states, that the entire election should be tossed and the electors decided by the state legislature rather than the voters.

The proposed remedies in the suits are unusual. Tossing ballots in most cases would mean throwing out ballots chosen at random since in most cases there is no way to, for example, decide which of the ballots are connected with the absentee voter envelopes they came in (and many of the challenges are for all or some class of the absentee votes). In Wisconsin, most of the lawsuits were based on the partial recount in Milwaukee and Dane Counties and only asked for remedies in those counties. The end result is a reduction in representation from the two most liberal counties in the state, which is clearly discriminating against the citizens living there. Most of these suits have been rejected in court. 

The suits that request throwing out the entire results in the state are even more bizarre. The response in general to these in the courts has been that they cannot be considered because the remedy is too severe and is clearly more motivated by a desire to turn the state's presidential vote over to the Republicans. All of the suits raise questions, not the least of which is that if the Democrats really had "cheated" in the election, why did they do such a lousy job of it? Why did Republicans win so many down-ballot elections, including ones were Democrats were expected to win? Only the presidential ticket has been questioned, which leads one to think that the plaintiffs really only care about the outcome in the presidential election and not one whit about election fairness or security.

So - where do we stand in Wisconsin, and what is this Safe Harbor thing we have heard about for the last few days? Although the laws concerning it are complex and oddly-written, Safe Harbor is a concept in US law applying to the electoral college. If a state has settled the outcome of the election in a state by the Safe Harbor date, then the Congress must accept the electors from the state. If the state does not have a settled vote by the Safe Harbor date, then the electoral college may or may not consider the electors from the state. At the moment it appears most likely that Congress will accept the Wisconsin electors even though we will miss the Safe Harbor date, which is today, Dec. 8.  Every state has met the date except for Wisconsin because we still have lawsuits pending against the election results. 

Why is Wisconsin in this position, and where do we stand re the suits? Three lawsuits were filed with the Wisconsin Supreme Court, which declined to hear all of them. One of these has been re-filed with lower courts in the state. The suits were combined by Chief Justice Patience Roggensack and will be heard by Racine County Judge Stephen Simanek this Thursday. This it would seem is the suit that is most likely to cause an issue with holding up the state, since it is possible that if it is overturned by the court it will be appealed to the Wisconsin Supreme Court. 

A federal suit was filed by the Trump campaign on Dec. 2 requesting that the entire election be thrown out and that the electors should be selected by the Republican-controlled state legislature. Judge Brett Ludwig in the Eastern District Court in Milwaukee is currently in charge of the suit and is planning a hearing this Thursday. He has not thus far shown much sympathy for the case, questioning whether the case belongs in Federal Court rather than with the state, and calling some aspects of the complaint "bizarre". 

Just to make life more complex, another case was filed today by the Texas Attorney General in the Supreme Court, asking that the results in Pennsylvania, Wisconsin, Georgia, and Michigan all be declared unconstitutional because election officials used the pandemic as an excuse to change election rules.  The general feeling among election experts is that the Supreme Court will refuse to hear this case in a rapid manner. Election expert Rick Hasen today

All of this to some degree is a tempest in a teapot, and frankly a little bewildering and reeks of desperation.  The US Supreme Court today rejected the request from the Pennsylvania GOP to invalidate the Pennsylvania election results. It is quite likely that the Electoral College will accept all of the electors after they vote on Dec. 14. It would be surprising if they did not accept the electors from Wisconsin, but in any case even if that were to happen this would not affect the election outcome since Joe Biden would still have plenty of electoral votes to be declared the winner. Even with all of the legal shenanigans that have been taking place, it is hard to see any reasonable path that will make Donald Trump the president after Jan. 20.  Let's all be hopeful that all of this will finally grind to a halt over the next week. A huge amount of time, effort, and money has been expended on this election already. It's time to move forward.

Steve Hanson
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