Until recently, the answer was not much. The 1887 Electoral Count Act said that submissions by a December “safe harbor” date were treated as “conclusive,” but late submissions could still be considered. However, when Congress revised that statute in 2022 to try to prevent another instance of the fraud and chaos that took place on Jan. 6, 2021, it amended the “safe harbor” deadline to make it mandatory. The statute, however, is silent as to what happens if a state blows by the must-submit date. Can Congress still consider the slate? Or would the state’s Electoral College seats be eliminated from the final tally? The new law punts this question to the courts, and it creates a fast-track mechanism for certification-related disputes to reach the justices.
Imagine, then, that the MAGA-backed Georgia state election board refuses to certify a Harris victory. To be sure, state law imposes what some call a “crystal clear” deadline on the state’s certification. But the board’s MAGA members could say their constitutional oaths forbid them from heeding a state law that requires them to bless what they (falsely) label a fraudulent result. Conflict over state law might well tie the governor’s hands — opening the gate to a legal challenge under the amended Electoral Count Act.
And if that happens, the justices will be in the awkward position of trying to fill a gaping gap in the new statute —which, remember, doesn’t say what to do if no slate is certified — in a case that determines who takes the presidential oath a few weeks later.
The author leaves out one important piece of information: when the ECRA triggers a review by a panel of federal judges, that panel must rule at least one day before the safe harbor date. That ruling could be appealed to SCOTUS, and the timing of their ruling is the only gray area I can see in this scenario.
I agree that GA is the most likely candidate for the ECRA to be triggered, but if it is the only state this happens in, won’t be critical to a Harris victory, as she has multiple paths to victory without GA, where it’s nearly impossible for Trump to win without GA.
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