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Does "safe harbor" provision prevent Congress from voting to reject presidential electoral vote(s)?

What kind of majority is required for such a rejection?

Is it possible to revert such a rejection by some means (e.g. a lawsuit)?

These question are of general nature unrelated to the current election process.


For reference: the corresponding law reads:

When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision; and no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified.

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  • @BobE I think that I know what "safe harbor date" means. But probably nothing prevents one Representative and one Senator from objecting a slate of electors even if it is "certified" and then House and Senate should vote on this objection. What happens if the required majority votes in favor of this objection, though this may violate the Electoral Count Act (ECA) of 1887? What are the consequences of such vote? I would assume the next body would be SCOTUS but some lawyer consider the ECA to be unconstitutional so that the result is also unclear and most probably SCOTUS will need time.
    – user
    Dec 16 '20 at 9:55
  • @BobE Probably there is also possibility that the new Congress with the help of the acting president voids the ECA as a whole, but my question does not concern this possibility.
    – user
    Dec 16 '20 at 10:00
  • @BobE Further I found that some lawyers consider that "simple majority" in both houses is required. But I do not see this requirement in the ECA. And I am not sure what exactly the "simple majority" here means (is it opposite to "qualified majority" or to "absolute majority").
    – user
    Dec 16 '20 at 10:05
  • @user You might want to edit those clarifications into your question, so the comments can be deleted.
    – Philipp
    Dec 16 '20 at 21:15
  • The title question doesn't seem to relate to the other questions you raise in the body. You seem to be focused on the process and procedures for Congress to follow in order to overturn the votes of electors from individual states. If that is what you really want to ask about, you should clarify the title Q
    – BobE
    Dec 16 '20 at 22:19
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Does anything prevent Congress from voting to reject presidential electoral vote(s). Is Congress limited as to the earliest date it (Congress) can begin an action to reject electoral votes.?

During the counting of electoral votes in the joint session, an objection can be made without regard to when the votes for electors are certified. It happened in 1969 and 2005 as shown in footnotes 11 and 13, below.

Otherwise, the Electoral Count Act places, with the state, all responsibility prior to the final count in January. States may (and normally do) certify "electors" prior to the "safe harbor" date.

Final State Determination of Election Contests and Controversies

Congress has, since 1887, sought to place the responsibility for resolving election contests and challenges to presidential elections in a state upon the state itself. Federal law provides that if a state, under its established statutory procedure, has made a “final determination of any controversy or contest” relative to the presidential election in the state, and if that determination is completed under this procedure at least six days before the electors are to meet to vote, such determination is to be considered “conclusive” as to which electors were appointed on election day (3 U.S.C. §5).3

——
3The six-day period established in law has been referred to as the “Safe Harbor” requirement, in that electoral vote results certified by that date are considered to be conclusively cast. See, e.g., Bush v. Gore, 531 U.S. 98, 110-11 (2000).


What will happen if both houses support an objection by the required majority, and what kind of majority is required?

The votes are not counted. A simple majority of each chamber is required to sustain an objection.

Objecting to the Counting of One or More Electoral Votes

Provisions in 3 U.S.C. §15 include a procedure for making and acting on objections to the counting of one or more of the electoral votes from a state or the District of Columbia. When the certificate or equivalent paper from each state (or the District of Columbia) is read, “the President of the Senate shall call for objections, if any.” Any such objection must be presented in writing and must be signed by at least one Senator and one Representative. The objection “shall state clearly and concisely, and without argument, the ground thereof.... ” [...]

When an objection, properly made in writing and endorsed by at least one Senator and one Representative, is received, each house is to meet and consider it separately. [...]

Disposing of Objections

These procedures have been invoked twice since enactment of the 1887 law. The first was an instance of what has been called the “faithless elector” problem. In 1969, a Representative (James O’Hara of Michigan) and a Senator (Edmund S. Muskie of Maine) objected in writing to counting the vote of an elector from North Carolina who had been expected to cast his vote for Richard Nixon and Spiro Agnew, but who instead cast his vote for George Wallace and Curtis LeMay. Both chambers met and voted separately to reject the objection, so when the joint session resumed, the challenged electoral vote was counted as cast.11 [...]

The second instance was related to reported voting irregularities in Ohio. In 2005, a Representative (Stephanie Tubbs Jones of Ohio) and a Senator (Barbara Boxer of California) objected in writing to the Ohio electoral votes. The chambers withdrew from the joint session to consider the objection, and the House and Senate each rejected the objection. When the House and Senate resumed the joint session, the electoral votes were counted as cast.13

[...]

Basis for Objections

The general grounds for an objection to the counting of an electoral vote or votes would appear from the federal statute and from historical sources to be that such vote was not “regularly given” by an elector, and/or that the elector was not “lawfully certified” according to state statutory procedures. The statutory provision first provides in the negative that “no electoral vote ... regularly given by electors whose appointment has been lawfully certified ... from which but one return has been received shall be rejected” (3 U.S.C. §15), and then reiterates for clarity that both houses concurrently may reject a vote when not “so regularly given” by electors “so certified” (3 U.S.C. §15). It should be noted that the word “lawfully” was expressly inserted by the House in the Senate legislation (S. 9, 49th Congress) before the word “certified.” Such addition arguably provides an indication that Congress thought it might, as grounds for an objection, question and look into the lawfulness of the certification under state law. The objection that votes were not “regularly given” may, in practice, subsume the objection that the elector was not “lawfully certified,” for a vote given by one not “lawfully certified” may arguably be other than “regularly given.” Nevertheless, the two objections are not necessarily the same. In the case of the so-called “faithless elector” in 1969, described above, the elector was apparently “lawfully certified” by the state, but the objection raised was that the vote was not “regularly given” by such elector. In the above-described 2005 case, the objection was also based on the grounds that the electoral votes “were not, under all of the known circumstances, regularly given.”

——
11When the two chambers reconvened in joint session, the Secretary of the Senate reported that the Senate had agreed to the following action: “Ordered, that the Senate by a vote of 33 ayes to 58 nays rejects the objection to the electoral votes cast in the State of North Carolina for George C. Wallace for President and Curtis E. LeMay for Vice President.” The Clerk of the House stated the results of the House action: “Ordered, that the House of Representatives rejects the objection to the electoral vote of the State of North Carolina submitted by the Representative from Michigan, Mr. O’Hara, and the Senator from Maine, Mr. Muskie.” Congressional Record, vol. 115 (January 6, 1969), p. 171. The House vote was 170-228. See also Deschler’s Precedents, vol. 3, chap. 10, §3.6. Both houses used roll call votes to decide the question.
13When the two chambers reconvened in joint session, the Secretary of the Senate reported that the Senate had agreed to the following action: “Ordered, that the Senate by a vote of 1 aye to 74 nays rejects the objection to the electoral votes cast in the State of Ohio for George W. Bush for President and Richard Cheney for Vice President.” The Clerk of the House then stated the results of the House action: “Ordered, that the House of Representatives rejects the objection to the electoral vote of the State of Ohio.” Congressional Record, daily edition, vol. 151 (January 6, 2005), p. H128. The House vote was 31-267. Both houses used roll call votes to decide the question.

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  • I guess the point I'm missing is: if congressional objections can still discard votes certified before the deadline, what is different about results certified before the Safe Harbor deadline vs after? What, if any, "threats" are the votes made safe from if they're certified before the deadline?
    – divibisan
    Dec 16 '20 at 20:00
  • @divibisan - Perhaps it is the wording. I take the question as asking if Congress can act prior to 6th day before the electoral college meets, for which the answer is no. Whereas, "Can Congress act after January 6th on votes certified prior to ...?", then yes.
    – Rick Smith
    Dec 16 '20 at 20:10
  • The way I interpreted the question was asking whether certified before the Safe Harbor deadline are really final and safe from further litigation or challenge.
    – divibisan
    Dec 16 '20 at 20:13
  • 1
    @divibisan, if the determination is made before the deadline, electors can be accepted or rejected, but not changed. This prevents things like what happened in 1876, where Congress had to decide between two competing slates of electors from South Carolina, Florida, and Louisiana.
    – Mark
    Dec 16 '20 at 21:25
  • @Mark Thanks. You should write your own answer, since I don't think that fact is spelled out clearly in the other answers
    – divibisan
    Dec 16 '20 at 21:33

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