Washington DC
Former Vice President Joe Biden has been declared the winner of the presidential election by the Associated Press. Some votes remain to be counted and lawsuits have been filed over some ballot counting. Still, the results won’t be set in stone until states and the Electoral College follow a set of well-established protocols. What are these protocols, and what, if any, opportunities does President Trump’s campaign have to continue contesting the results?
Recounts and Voting Irregularities
Several states allow campaigns to request recounts or trigger recounts automatically if the difference in votes for candidates falls within a certain margin. The Trump campaign has already said it would request one in Wisconsin, where Mr. Trump trails by about 20,000 votes. In Georgia, where Mr. Biden’s lead is narrower, the state’s top election official said a recount would be conducted. States also have a patchwork of ways to deal with alleged voting irregularities.
Electors
States are supposed to resolve any outstanding issues about results by Dec. 8, the deadline for states to certify their electoral votes and the electors who will cast them in the Electoral College. Each party chooses a slate of electors—often before the election—and the electors pledge to vote for their party’s candidate if their slate is sent to the Electoral College for certification.
The governor then certifies the election results and the winning party’s slate of electors who will be sent to the meeting of the Electoral College. The electors meet in the capitals of their respective states on Dec. 14 and vote to finalize their state’s election results.
Caveats
Electors are supposed to vote for the winner of the election in their state, but they don’t always. In 2016, three electors in Washington state pledged to Hillary Clinton voted for former Sec. of State Colin Powell, and one in Colorado voted for former Ohio Gov. John Kasich, in a bid to coax Trump electors to defect and throw the election to the House of Representatives, a contingency provided for in the Constitution. The gambit failed, although seven Trump electors also decided to vote for other people.
Some of those votes were invalidated by state “faithless elector” laws that prohibit electors from voting for anyone other than their party’s nominee. The Supreme Court earlier this year affirmed that these laws are legal and that electors’ voting ability may be restricted. Thirty-three states and the District of Columbia have faithless elector laws on the books, though some lack enforcement mechanisms.
Some Trump allies, including Senate Judiciary Committee Chairman Lindsey Graham, have voiced support for state legislators, especially in closely contested states with Republican-held legislatures like Pennsylvania, stepping in to invalidate election results and choose electors if they believe fraud has been committed.
State legislatures, however, face constraints. In Pennsylvania’s case, State Senate Majority Leader Jake Corman and State House Majority Leader Kerry Benninghoffwrote in a newspaper commentary before the election that state law provides no role for the legislature “in choosing the state’s presidential electors or in deciding the outcome of the presidential election.”
Congress
By Dec. 23, the Electoral College’s certified vote is sent to the Senate. On Jan. 3 a new Congress is sworn in and three days later a joint session of the House and Senate gathers to count electoral votes and declare the results. When the results are tallied and one candidate is determined to have more than 270 votes, the vice president, who serves as the president of the Senate, announces the results.
The congressional count would be the last opportunity for a candidate to contest the results. An objection to the count in any particular state can be lodged in writing by at least one member of the House and one member of the Senate. The joint session would then recess to debate the objection for up to two hours.
Each chamber would then vote on whether to uphold the objection. Both chambers must agree in order for it to move forward. If, as currently projected, Democrats control the House and Republicans the Senate, a last-minute objection by Republicans to the results is unlikely to move forward.
The declaration of results on Jan. 6 is the final step before Inauguration Day. At noon on Jan. 20, the new president takes the oath of office.
