What happens after Election Day? The process is longer (and more unclear) than you might think.
By Roey Hadar
Election Day is November 3, but regardless of who wins or how close the results may be, the election will not officially be over.
In every presidential election cycle, there are a handful of key dates when the full results of the election are legally certified and the election is made official.
As millions of voters have contributed to a surge in early and mail-in voting amid the COVID-19 pandemic and President Donald Trump has made statements questioning the validity of his potential defeat, the official election process may get more attention this year than at any point in recent memory, even more than in 2000.
Beyond November 3, an array of outcomes are possible. While in most elections the process of the Electoral College voting and Congress certifying the results is a formality, there are windows for disputes. Lawsuits can drag on for weeks after Election Day. A state legislature could decide some votes are invalid and send electors of their choice. And in the absence of a declared winner in Congress by Inauguration Day, the presidency could fall to the Speaker of the House amid dueling claims to the White House.
While many of the scenarios above are remote and rely on a lot happening after Election Day, a disputed election has the potential to push the U.S. electoral system to the limit.
So how do election results become official? And where could the existing process be challenged?
November 3 – Election Day
Election Day 2020 is on November 3, but millions of ballots were cast in advance of Election Day itself. Over 100 million Americans have voted early, far exceeding the number of total early votes cast in 2016, according to data from the U.S. Elections Project.
While watching numbers roll in and news sources declaring a winner has become a tradition in American politics, the results are still far from official on Election Night.
“There is never any official result on Election Night,” says Edward Foley, a law professor at Ohio State University who directs the school’s election law program. “The only thing we ever have on election night are projections because official results only come from the certification of results that officials do and that takes two to three weeks.”
Election results may take longer this year not only because counting processes may be affected by the pandemic, but states are also bound by their own laws. While some key states, including Florida and North Carolina, are able to count ballots before Election Day, others, such as Michigan and Pennsylvania, were not allowed to start counting ballots before November 3.
Another factor that could delay results is the fact that some states will allow ballots to be received after Election Day. The Supreme Court issued a pair of rulings in October, deciding that Pennsylvania can count ballots received after Election Day, provided they are postmarked by November 3, while throwing out a similar extension in Wisconsin.
One thing this will not stop, however, is speculation about the results or a potential declaration of victory from a candidate.
Foley has written extensively about the concept of a “Blue Shift,” the idea that results from Election Day may favor Republicans, while later results from tabulating early and mail-in ballots would favor Democrats. He has cited the example of the 2018 U.S. Senate race in Arizona, where early results favored Republican candidate Martha McSally, but Democratic candidate Kyrsten Sinema won as more mail-in ballots were counted.
“You can imagine a similar thing happening in the 2020 presidential election if the president is ahead on election night and that lead slips away,” Foley said.“There could become a dispute over whether or not the later ballots should be counted or not.”
Another likely prospect to be dealt with in the days and weeks after November 3—lawsuits over whether votes will be counted, according to Loyola Law School professor Jessica Levinson, who specializes in the law of the political process.
“Democrats in general are going to make the argument that you prevented people from voting or you didn’t count enough ballots and Republicans are going to be making the opposite argument,” Levinson said.
While slow counts may cause delays and prompt lawsuits, Levinson added, that does not mean that the election system is failing.
“That actually shows the system working,” Levinson said. “Administrators are doing what they’re supposed to do.”
December 14 – Electoral College vote
Presidential elections are not direct votes—in casting a ballot for a candidate, voters are voting for a slate of electors meant to cast Electoral College ballots for the candidate. This happens on December 14 when all states’ electors cast their ballots.
Disputes over results in specific states would need to be resolved by December 14 to avoid making it a problem Congress would need to resolve.
“The real pressing issues will be based on ongoing lawsuits and just trying to make sure that the lawsuits are resolved in time to allow for the certification of results, to send the electoral college results to Congress,” Levinson said. This happened in Florida in the 2000 presidential election, when a dispute over the results was resolved just days before the Electoral College vote.
In most elections, there is no issue—electors vote based on the results and that is sent to Congress. But there is a window for a dispute over whose electors are valid, according to Foley.
He notes that Article II of the Constitution gives state legislatures the power to determine their state’s electors. So if the results of a state shift from Election Day to the end of the count from Republicans to Democrats, and Republicans control a state legislature, they could argue the later-counted voters are not valid and use their power to submit electors of their choice.
But, he added, governors have their own power to certify the results, one that tends to take priority in Congress and in legal arguments. In key states where one party controls the legislature and another controls the governorship, it opens the door for competing, disputed slates of electors. While this happened in the 1876 presidential election, it has not materialized since.
“We would be in new and uncharted territory relative to modern times if you have rival slates of electors each claiming to be authoritative for these battleground states,” Foley said, adding that a scenario with disputed sets of electors could also occur if, for some reason, a state is unable to finish its count by December 14.
January 6 – Congress certifies the Electoral College results
After the electors vote, the results are sent to Congress for certification on January 6, a few days after a new Congress is sworn in.
Congress goes state by state, in alphabetical order, to count the results, resolving any disputes before moving forward, according to procedures set out in the Electoral Count Act of 1887.
If Congress receives one slate of electors from a state, it usually accepts them. In the one case where multiple slates of electors were submitted, Congress issued a ruling to pick one and decide the election.
If an election were to still be disputed after that count, it would reach unprecedented constitutional territory, particularly if the House ruled one slate of electors valid and the Senate picked another.
Between issues with the Electoral Count Act, which Foley described as “convoluted,” and the 12th Amendment, which sets out election procedures, the process enters a legally murky area.
“Because of the ambiguities of the statute of the 12th Amendment, if you start the January 6 meeting with general contestation, at that point there is elevated risk… that the process could break down,” Foley said.
If the fight were to proceed on purely partisan lines, Democrats could argue the law says a governor’s certification should take priority and have House Speaker Nancy Pelosi enforce that decision in the House, while Republicans could assert Vice President Mike Pence’s power to cast the tie-breaking vote as “President of the Senate.”
Another issue at hand is that a dispute may result in one or more states having their electors thrown out of the count. One problem left unresolved by the law is whether the final electoral vote majority needed to win would still be 270 (a majority of the usual 538 electoral votes) or whether it would be a majority of the 538 minus the number of electors thrown out.
But as Foley notes, when the Electoral Count Act was written in 1887, memories of a disputed election in 1876 played a role in why there is no answer.
“The Electoral Count Act didn’t touch that question because its own authors couldn’t agree how to resolve the denominator problem,” Foley said.
In the event that state results are thrown out so that no candidate achieves a majority, or if Trump and Democratic nominee Joe Biden each win 269 electoral votes, then Congress would start a “contingent election procedure.”
The House picks the president, with each state delegation receiving one vote. And the Senate picks the vice president, with all of its members voting.
While Democrats control the House currently, Republicans have a majority of state delegations. If this does not change in the November 2020 elections, a House with a Democratic majority would likely re-elect Trump, unless members cross party lines.
The Senate vote for vice president would likely hinge on which party controls the chamber come January. If Democrats flip the Senate and hold the House but cannot gain control of state delegations, it allows for the prospect of a President Trump and a Vice President Kamala Harris to be elected together.
But by controlling the House, Levinson points out, Democrats have another legal gambit they may be able to try to force a Biden victory. While it is far outside of Constitutional norms, a legal argument exists that Democrats could use Article I, Section 5, of the Constitution, which allows for the House to determine which members get to cast the one vote each state has.
“[Pelosi] would have her majority be the judge of the contested election. The House would then seat enough Democrats to give the Democrats the majority of state delegations,” Levinson suggested.
January 20 – Inauguration Day
Assuming the results are clear on January 20, the Chief Justice swears in a president-elect, who assumes the office and begins a four-year term.
If the process is still disputed, such as if the Speaker of the House freezes the count until a dispute is resolved, it creates what Foley describes as the “ultimate constitutional crisis.”
One thing that can’t happen is President Trump’s term extending until the dispute is figured out. Come January 20 at noon, President Trump’s current term ends.
If an election dispute continues until then, there will be competing claims to the presidency. While both Trump and Biden have a claim to the presidency, Pelosi would be prescribed by the Constitution as the Acting President, unless or until an official winner is determined by Congress or if the Supreme Court issues a ruling that one of the candidates’ claims is valid.
In all, the election officially plays out for at least two months after Election Day. There are an array of legal maneuvers that can either resolve or impede the election result.
While it remains a remote prospect that the U.S. will have no president come Inauguration Day, the possibility remains of an extended challenge to the results of the November 3 election and for the candidates to make competing claims to winning states or the entire election.