FAQ: What happens next in the presidential election process?
November 6, 2020 by Scott Bomboy
The 2020 election contest between President Donald Trump and former Vice President Joe Biden seems headed into overtime, as the presidential vote-counting process continues into Friday. Regardless of which candidate claims victory in the election, the odds are good the election will be contested.
As of Friday morning, the races in Arizona, Georgia, Nevada, and Pennsylvania were still tightly fought - so close, in fact, that their votes could be subject to a recount in the next month. There are also lawsuits in play about a state’s ability to ask for extended mail-in ballot deadlines, and how ballots were counted.
Here is a brief roadmap to the key deadlines in the presidential election process going forward.
Elections contested within the states (until December 8)
Each state has laws that allow a candidate, including a presidential candidate, to ask for an election recount. In some instances, a recount is automatically started based on the margin separating the top two candidates.
A presidential candidate also can allege voting was conducted or counted in an improper way, and then seek a remedy within the state’s legal system, and in some cases at federal court.
The popular legal blog Lawfare has a list of these different scenarios, including how disputes, recounts, and elector vacancies will be handled within the current battleground states. For example, Nevada allows a candidate to contest an election on at least six grounds, including cases where “Illegal or improper votes were counted, legal and proper votes were not counted, or some combination of the two.”
In Wisconsin, the Trump campaign said on Wednesday it may request a recount, which is permitted when a candidate trails the leading candidate by no more than 1 percent of the total votes cast for that office when at least 4,000 votes were cast.” Additional grounds for a recount include claims by a candidate that “a mistake has been made; fraud has been committed; or another specified defect, irregularity or illegality has occurred.”
A federal law (3 U.S. Code § 5) known as the “safe harbor provision” requires a state to settle these disputes and determine its electors six days before the electoral college members meet in person. In 2020, that deadline is December 8, since the college votes on December 14, 2020
Elections contested in court (until December 14)
While in most cases any dispute at a state level must be resolved by December 8, back in 2000 a divided Supreme Court, in a 5-4 vote, ruled on December 12 in Bush v. Gore, after the safe-harbor date for Florida’s election. The court’s ruling settled a controversy over an automatic recount in Florida and it was issued quickly because of the impending December 14 meeting of the electoral college.
In the current election, according to the Washington Post at least 12 significant presidential-election lawsuits were in federal courts as Election Day started, and another suit was filed on Election Day in suburban Philadelphia about the handling of mail-in ballots. Still more are in the works as of Friday.
Perhaps the most prominent was the emergency request in Republican Party of Pa, v. Boockvar declined by an equally-divided Supreme Court on October 19 that could be heading back to the nine justices at some point. The Republicans sought to have a Pennsylvania Supreme Court decision overturned that allowed for the counting mailed-in ballots received for three days after Election Day in Pennsylvania.
A separate analysis from USA Today found that 230 election-related lawsuits had been filed this year in federal courts through October 2020.
The electoral college meets (December 14)
Of course, the votes for president are actually votes for a slate of electors who cast ballots in the electoral college, a gathering held in the 50 states and the District of Columbia on an appointed day in December after the election.
During the electoral college meetings on December 14, 2020 another possible controversy could involve a faithless elector who decides to cast his or her vote for a different presidential candidate. Some states can disregard a vote cast by a faithless elector. The Supreme Court’s unanimous July 2020 decision in Chiafolo v. Washington affirmed that state laws penalizing or replacing faithless electors are constitutional.
However, not all states have such laws on the books. The website FairVote.org tracks the faithless elector laws across America. It says 33 states and the District of Columbia require electoral college members to cast ballots for a pledged candidate. Among the closely contested states in 2020, FairVote says Pennsylvania and Wisconsin are among the states without faithless elector laws.
The electors’ votes head to Congress (December 23, 2020)
Federal law requires states to deliver certified electoral college results to the vice president, serving as president of the Senate, and other parties by the fourth Wednesday in December; in the year 2020 that date falls on December 23.
What happens if a state misses that deadline and it can’t agree on a way to handle a faithless elector? Or there is a dispute over the election winner between the state lawmakers and a governor, for example?
The federal statute 3 U.S.C. §12, 13 requires the vice president or the Archivist of the United States to compel “secretary of state or equivalent officer” of that state to send the certified election results to Congress, using direct mail or a messenger sent to a federal judge in the state in question, if the judge has the certified election results.
Congress counts the electoral votes (January 6, 2021)
Also under federal law, a joint session of Congress is required by the 12th Amendment to count the electoral votes and declare the winners of the presidential election. That joint session of Congress is held on January 6, 2021 at 1 p.m.
When the results from each state are announced, a member of the House and Senate can jointly object, in writing, to the election results from that state. The House and Senate then adjourn for up to one hour to consider the objection; if both bodies agree to uphold the objection, the votes are excluded from the election results under the terms of the Electoral Count Act of 1887.
There are several scenarios that could allow for this final vote count to be delayed in Congress. One scenario would be if House and Senate agree to exclude a state’s electoral votes, which would then result in a candidate not having the majority of electoral votes. Another would be a faithless elector causing a tie in the electoral college voting.
The 12th Amendment then calls for run-off or contingent elections in the House (to select a president) and the Senate (to select a vice president). Those elections would need to be finished by 12 p.m. on January 20, 2021 for the next president and vice president to take their oaths of office. If that does not happen, the Speaker of the House would serve as president until Congress certifies a winner of the 2020 presidential election.
Scott Bomboy is the editor in chief of the National Constitution Center.
More Resources from the National Constitution
The Interactive Constitution
Common Interpretation: The Electoral College
The 12th Amendment
Blog Posts
The 23rd Amendment and the chance of a tied 2020 presidential election
The Constitution and contested presidential elections
Podcasts
Election 2020 in the Courts
Town Hall Videos
America’s Contentious Presidential Elections: A History
Educational Videos
Learning About the Electoral College With Tara Ross (High School/College Session)
https://constitutioncenter.org/blog/faq-what-happens-next-in-the-presidential-election-process
