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States face "safe harbor" deadline to certify results, sealing Biden's win

Local Matters: Georgia governor rejects Trump request
Local Matters: Georgia governor rejects Trump... 10:56

Despite the barrage of largely unsuccessful lawsuits by the Trump campaign, the Electoral College is all but certain to determine President-elect Joe Biden to be the winner of the election next week, and Tuesday marks a critical deadline further establishing President Trump's loss.

December 8 is the deadline this year for states to certify their election results this year, conferring a "safe harbor" status that compels Congress to accept those results when it convenes to count electoral votes in January. State electors will meet and cast their ballots on December 14.

The Electoral Count Act of 1887 determined that if a state certified its election results by six days before the Electoral College meets, then it would qualify for "safe harbor," and Congress must consider its results "conclusive." Every state except Wisconsin appears to have met the deadline, as there is a hearing in a lawsuit on the state's election results later this week. But Mr. Biden is still expected to receive all 10 of the state's electoral votes next week, since he won Wisconsin by around 20,000 votes.

It is possible for Congress to challenge the results in a state which did not meet the December 8 deadline. Congressman Mo Brooks of Alabama has said that he plans to challenge electoral votes for Mr. Biden when Congress reconvenes on January 6. He would need to be joined by one senator and present his objection in writing, and then both houses of Congress would debate the objections and vote on whether to sustain them, according to the Associated Press.

In a statement, attorneys for the Trump campaign quoted the dissenting opinion in the 2000 Supreme Court Bush v. Gore, which found that the date of "ultimate significance" is when Congress convenes to count and certify the votes.

"Despite the media trying desperately to proclaim that the fight is over, we will continue to champion election integrity until legal vote is counted fairly and accurately," attorneys Rudy Giuliani and Jenna Ellis said.

It is possible that there will be "faithless electors" who will vote on a different candidate than their state elected on December 14. However, most states have laws which nullify the votes of faithless electors, and there are not expected to be enough to alter the outcome of the election.

Meanwhile, Mr. Trump's campaign has continued to challenge election results with lawsuits in several states. The president has also personally intervened in three states — Pennsylvania, Michigan and Georgia — in an effort to overturn their election results. 

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