The people have spoken. Now what?
Normally, what happens between Election Day and Inauguration Day is a series of formalities to which few people need to pay attention. But President Trump’s refusal to acknowledge that he lost to President-elect Joseph R. Biden Jr., and top Republicans’ acquiescence to his efforts to subvert the democratic process, have made the arcane procedures by which the will of the people is formalized a matter of public importance.
First, let’s address the elephant in the room: It is extremely unlikely that Republicans will be able to overturn the results of the election.
It is possible, yes, to come up with scenarios in which legislators or judges engineer a second Trump term and plunge the nation into a constitutional crisis. But even with a conservative Supreme Court, a Republican-led Senate and Republican-led congressional delegations in most states, election law experts are confident this won’t happen.
Here’s an overview of what will happen between now and January, how the Trump campaign could try to intervene and why it is so unlikely to succeed.
First, states will certify their election results.
County or municipal officials — whichever level of government is responsible for election administration in a given state — must count all ballots, double-check the totals and make sure every valid vote was included. The exact procedures vary by state.
Those officials report their final tallies to the state, whose chief election official — often, but not always, the secretary of state — compiles the results and submits them to the governor. States set their own deadlines for this; a few have already done it, and the last deadline is California’s on Dec. 11.
The governors must send Congress a “certificate of ascertainment” with their states’ certified vote totals and the names of their electors before Dec. 14, when the Electoral College will convene. But there is a strong incentive to do it earlier, because results certified by Dec. 8, known as the safe harbor deadline, are largely insulated from challenges.
The Trump campaign could still file a lawsuit challenging results certified by the safe harbor deadline — anyone can file a lawsuit, even if it’s meritless — but the courts would almost certainly throw it out.
“Once you’ve certified, you’re really supposed to be protected from litigation,” said Jessica Levinson, a professor at Loyola Law School who specializes in election law. “There’s supposed to be this magic case that wraps around the state results after they certify, and we only open the case up to Congress.”
State legislators could, but probably won’t, intervene.
A primary tactic of the Trump campaign and conservative groups has been to use lawsuits and other maneuvers to try to prevent states from certifying their results, or at least delay the process. The idea is, in part, that if election officials can’t certify Mr. Biden’s victories in time, Republican-controlled state legislatures could step in and name pro-Trump electors.
In Georgia, Mr. Trump called for, and the Republican secretary of state authorized, a time-consuming hand recount, which could stretch past the certification deadline. Still, that deadline is a month away, and courts could step in if officials appeared to be artificially prolonging the recount. Mr. Biden’s 14,000-vote lead is an extraordinary hurdle for any recount to overcome, and he doesn’t need Georgia’s electoral votes to win anyway.
In Pennsylvania and Michigan, Republicans have filed lawsuits to block certification based on unsubstantiated allegations of voting or counting irregularities. But judges have roundly rejected the Trump campaign’s complaints so far, and Mr. Biden’s leads are well outside recount range: more than 50,000 votes in Pennsylvania and nearly 150,000 in Michigan.
Even if the counts were certified on time, state legislators could still, in theory, go rogue and appoint pro-Trump electoral slates to compete with the slates certified by governors. But Pennsylvania Republicans have already said they won’t do that, and even if they or legislators in another state did, it probably wouldn’t survive legal scrutiny.
“I think the argument that they would try to make is that there is an electoral failure under 3 U.S.C. § 5, that the election was essentially a failure, but no one’s actually tried this before,” said Jon Greenbaum, chief counsel at the Lawyers’ Committee for Civil Rights Under Law, referring to the section of federal law that governs disputes over electors. “There would have to be a whole series of things that, in our view, would be contrary to law to get to the point where a Republican legislature could override the will of the voters.”
The Electoral College will meet.
On Dec. 14, each state’s electors will formally cast their votes.
Most states have laws requiring electors to vote for the candidate they were pledged to (in almost all cases, the winner of their state’s popular vote), limiting the possibility of “faithless electors.” (There were several in 2016, but they didn’t change the final result.) The Supreme Court unanimously upheld those laws this summer in Chiafalo v. Washington. So that’s one less source of uncertainty.
One possible — but, again, exceedingly unlikely — complication would be if a state legislature somehow managed to appoint a pro-Trump slate and defend it against legal challenges, but the governor certified a pro-Biden slate through the normal process, producing two competing sets of electors.
In that case, it would be up to Congress to decide which slate to count.
But “I don’t think any of this is likely to happen,” said Paul Smith, vice president of litigation and strategy at the Campaign Legal Center, a nonpartisan voting rights group. “Absent some really clear justification, like some massive dysfunction, it’s pretty hard for a legislature to say, ‘We’ve just decided we don’t like democracy anymore.’”
Congress will certify the results.
On Jan. 6, Congress will count and certify the electoral votes.
In any remotely normal year, state certifications — by Dec. 8 or, at the latest, Dec. 14 — would be the end of disputes, and everything after that would be formalities. In all likelihood, that will be the case this year, too.
But in the unlikely event that state legislatures and governors appointed competing slates, Congress would have to choose.
Something like this actually happened in 1960: The governor of Hawaii certified a 141-vote victory for Richard M. Nixon, but a recount flipped the state to John F. Kennedy, and the results weren’t final when the Electoral College met. The stakes were low — Hawaii’s electoral votes had no bearing on the outcome of the election, which Kennedy won — but Congress did have to resolve the dispute. Nixon himself, presiding over the Senate as the sitting vice president, called for unanimous consent to count the pro-Kennedy slate.
In the theoretical 2020 version of this scenario, Mr. Greenbaum said, federal law suggests that Congress should favor the governors’ slates.
But let’s say Congress stuck to partisanship, meaning the Democratic House chose a governor’s pro-Biden slate and the Republican Senate chose a legislature’s pro-Trump slate. Even in the case of a congressional stalemate, federal law dictates that the slate chosen by the “executive” of the state in question would prevail, according to David Boies, who was Al Gore’s chief lawyer in the 2000 Florida recount.
There is some ambiguity, Mr. Boies said, as to whether “executive” refers to the governor or the secretary of state. But in all three key states — Michigan, Pennsylvania and Wisconsin — both figures are Democrats.
Biden will be sworn in.
The coming weeks may be chaotic. They may undermine public faith in the electoral process and cement Trump supporters’ false belief that the election was “stolen.” The damage to democratic institutions may be long-lasting.
But in the short term, it is virtually inconceivable that anything will happen but this: On Jan. 20, 2021, Mr. Biden will raise his right hand, take the oath of office and become the 46th president of the United States.
For months, Professor Levinson said, she has kept a list of “election nightmares,” none of which have come to pass. Interference by Republican legislators is the only scenario left, and she is not worried. Too many unlikely things would have to happen in too many states where Mr. Biden is ahead by too many votes.
“Find me the states. Find me the state where it’s susceptible to this type of shenanigans,” she said. “So many things have to go wrong for that to happen. You need the tornado to hit the hurricane during the 8.0, and I really just don’t think it’s going to happen.”
Jo Becker contributed reporting.
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