Tag Archives: Safe Harbor

Safe Harbor Day — UPDATED

Whether it is just the weirdness of 2020 or the narcissism of the Orange Menace, this post-election period has been about key dates and events.  Over the past four weeks or so, one by one, despite unsuccessful attempts to have courts intervene to block them, states have certified the results of the presidential election, and the remaining states are set to do so on Monday or Tuesday.   Once the appropriate authority within the state has certified the results of the presidential election, the governor is to complete and mail to the National Archives a “certificate of ascertainment.”  As of today’s date, the National Archives has received just under half of these certificates.

Now normally, this process is routine.  It happens, and only political geeks pay attention.  But because Trump and his “lawyers” refuse to face reality, we are now facing an event that has only really mattered once before in U.S. history — the safe harbor date.   If a state has concluded any dispute related to electors by six days before the electors meet, the determination by the state is “conclusive.”  In 2000, the U.S. Supreme Court used this language to find that Florida wanted all election contests to end by the safe harbor date.  The 2000 election is the only time that we have faced the safe harbor date having any meaning.

But we are back in that boat again.  And this year, the safe harbor date is Tuesday, December 8.    Despite Trump’s attempt to cast this election as a repeat of 2000 with the Supreme Court intervening to decide the election if necessary, what is happening in the courts does not support that alternate reality. Continue Reading...

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Post-Election Terminology

During the extended count and litigation, we are hearing a lot of terms tossed around that are usually the special reserve of election law geeks.  So here is a quick primer on some of these terms.

Audit — This term typically covers the process of double-checking the count.  While not every state does an audit, and the audit process differs from state to state, there are some aspects that are shared by several states.  First, the most simple audit is simply a check that the machines are functioning properly.  This typically involves a “test deck” with a known count to see the machine records the count correctly.  Second, several states do a hand count of random precincts and random races.  As with the test deck, the hand count is to make certain that the machines are roughly correct. Of course, a hand count will pick-up some ballots that the machine is unable to read.  If this part of the audit reveals a significant deviation from the machine count, it can be expanded to cover more precincts and more races.  Third, some states do other types of machine tests to verify the programming.  Fourth, depending on the state, an audit might include checks to make sure that the counts of ballots and voters match.

Canvass — This term is somewhat slippery as it is sometimes used to refer to local processes and state processes and often includes the certification process.  At it’s most simple, it refers to the local process of reviewing ballots — primarily absentee and provisional — and making sure that the vote totals from all precincts and voting centers are accurately recorded.    If there is time, the canvass can include an attempt to resolve any discrepancies in the counts of ballots and voters. Continue Reading...

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