Alan Zendell, December 9, 2020
For sixty years, when December 7th rolled around, Americans shared remembrances of what was referred to as the most heinous act ever committed against the United States on Pearl Harbor Day. The tributes waned in 2002, as, much to the relief of Japanese Americans, the nine-eleven attacks relegated Pearl Harbor to second place.
I’ve missed those emotional memorials, but this year, on December 8th, we celebrated an occasion that despite its lack of prior notoriety, is equally momentous. Except for a reference most American missed in 2000, no one has paid much attention to Safe Harbor Day since it was established in an 1887 federal law. Until now it was mostly a formality, one of several milestone dates in the peaceful transition of presidential power. But not this year.
The 1887 law prescribed the date by which all presidential electoral votes certified by the governors of the states could not be changed by anyone including the U. S. Congress, which ceremoniously recertifies them two weeks before a new president is inaugurated. That date, which in 2020 is December 14th, must occur six days after every state has certified its results, which imposed a deadline of December 8, 2020 for those certifications to be finalized. The date is known as Safe Harbor Day because it is supposed to mark the end of challenges to the election when Americans can safely assume the electoral process is over.
Though the only transition period date specified in the Constitution is January 20th, the day on which the new president is inaugurated, Safe Harbor Day has quietly been observed in each of the thirty-two presidential elections until 2016. The only time it was mentioned in a significant context was when a Conservative-leaning Supreme Court cited the Safe Harbor deadline as justification to terminate challenges to the election of George W. Bush.
Safe Harbor Day is important this year because it should mark the end of the baseless challenges to an obvious victory by Joe Biden and Kamala Harris. In the five weeks since the election, the Trump campaign has filed more than fifty law suits in state and federal courts, including State Supreme Courts in battleground states. In every case except one minor procedural challenge, judges have thrown out the suits as lacking any substance. While Safe Harbor Day having passed cannot prevent Trump from continuing to obstruct the presidential transition, it stands as a symbol of how the Founders intended the process to work.
Taken in the context of Trump’s failed challenges, Safe Harbor Day demonstrates the strength of the American system of government. Despite fears that Mitch McConnell packing the courts with conservative judges and Trump shifting the balance of the U. S. Supreme Court far to the right might determine the outcome of the election, that hasn’t happened. The integrity of our judicial system has been challenged this year like never before, and it passed brilliantly. Our judges, regardless of political orientation or ideology, consistently and unanimously followed the law. As historians look back on the Trump presidency, that simple fact will stand out as the last defense of our democracy against a president who would trash the Constitution for his own benefit if he were allowed to.
Ever since Trump began his rise to power, his populist movement and Trump himself have been compared to Adolf Hitler and the rise of Fascism. Writers and historians have noted the striking similarities between them, with the single unknown being whether our republic could survive Trump’s all-out assault on its fundamental principles. What we have seen in the last five weeks assures us that the similarities between Trumpism and Fascism were far less important than the differences between the Weimar Republic in Germany and present-day America.
Fascism succeeded because the German Republic was weak and fragile. Hitler needed only four months in power to neutralize the Reichstag, Germany’s Congress, destroy that nation’s free press, and co-opt its judicial system. But our republic is neither weak nor fragile. And despite permitting open dissent by all parties, despite the administration’s blatant attack on truth, its disrespect for the rule of law and gun nuts threatening civil war, our republic prevails. It does so because our free press was not intimidated and because as our Founders intended by separating the powers of the three branches of government, our Judiciary stood tall.
One of Trump’s goals was to throw the election into the hands of the Supreme Court. He fully expected the three justices he appointed to be loyal to him, because quid quo pro is the only way he knows how to do business. Instead, they were loyal to the Constitution, and that’s why Americans can relax today. We’re not done feeling the pain inflicted by this president, but we can feel assured that on January 20th his tenure will end.