President-elect Joe Biden, accompanied by his wife Dr Jill Biden. Picture: Jonathan Ernst/Reuters
President-elect Joe Biden, accompanied by his wife Dr Jill Biden. Picture: Jonathan Ernst/Reuters

What comes next in the process of Joe Biden becoming president

By The Washington Post Time of article published Nov 12, 2020

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Philip Bump

Washington - Americans old enough to remember 2016 or who paid close attention in fifth-grade civics class understand that last week's presidential election was not the moment at which Joe Biden was determined to have become the next president. At least, not directly.

Last week's vote did establish Biden as president-elect, yes. But it's the vote of the electoral college, a group of 538 individual voters, that will formally make Biden the next president.

Normally, the transition from the state-level vote to the electoral vote is trivial, an artifact of how the Constitution set up the position of president.

This year, though, with President Donald Trump so far refusing to acknowledge his loss, the period from Election Day to the vote of the electoral college becomes much more fraught, introducing a number of points at which Trump can try to muck up the works.

It's useful, then, to articulate what happens next and how Trump and his allies might try to change the outcome of the election by changing the composition of the electoral college.

The National Archive has a useful timeline of how things proceed.

November 3: Voters cast ballots in each state and D.C.

At some point from November 4 to December 14: The results of the election in each state are certified.

This is itself generally not a big deal. Delaware, for example, has already certified Biden as the winner - not surprising given that it's where he lives. This year, though, Trump and his allies have already suggested that they will try to interrupt the certification in some states, like Pennsylvania.

Republican officials in Georgia have been under enormous pressure to somehow reconsider Biden's apparent win in the state. On Wednesday morning, Georgia's secretary of state announced that a hand recount would be conducted. It's unlikely to affect the results.

After results are certified, state governors then prepare multiple copies of a "certificate of ascertainment." This document lists the names of the actual electors the state is sending to the electoral college and the number of votes being cast for the winning candidate. (In the cases of Maine and Nebraska, both Trump and Biden will be represented by electors because both states split their electoral votes depending on the winners of House districts.)

The selected electors are not just random people off the streets. They are identified by the state in advance and depend on the winning candidate. Parties pick people they are confident will vote for the intended candidate, given that the electoral vote is what determines the president.

In Wyoming, for example, the state's three electors will be Bonnie Foster, Teresa Richards and Karl Allred - Trump's campaign director in the state and two Republican officials, respectively. In New York, the slate includes Gov. Andrew Cuomo, D, and both Bill and Hillary Clinton.

This doesn't prevent so-called "faithless electors" from emerging. In 2016, seven electors ended up voting for candidates other than those they were supposed to support.

December 8: If there are any disputes over the slate of electors - like disputes over who actually won the election - they must be resolved by December. 8 in order to ensure that the process can move forward. If there's any controversy after this point, things get tossed to Congress.

How might controversy arise? Well, let's say that the results of the vote in a state favor Biden but that Republicans in the state legislature are sympathetic to Trump's claims that those results are suspect. There's no evidence at all in any state that the results should be considered in that way, but that's no guarantee that legislators won't be sympathetic to it. And under the Constitution, the authority for appointing electors falls to the state legislature.

One legal adviser to the Trump campaign described the thinking to The Atlantic's Barton Gellman earlier this year: "The state legislatures will say, 'All right, we've been given this constitutional power. We don't think the results of our own state are accurate, so here's our slate of electors that we think properly reflect the results of our state.'"

A state could end up with two slates of electors in that scenario, and those slates could both survive the December 8 deadline.

December 14: Electors meet in their states and vote for their designated candidates. The votes are recorded on "certificates of vote" which are then paired with the certificates of ascertainment and sealed to make up the actual votes from the state.

If there are competing slates of electors, both could meet separately and create "official" votes.

December 23: This is the deadline for the votes being received by the Archivist of the United States and the president of the Senate - Vice President Mike Pence. They're then transmitted to Congress by January 3, 2021, the day the new Congress is seated.

January 6, 2021: The votes are counted in a joint session of Congress. Members of Congress can raise objections to the count in writing, with any objection necessitating agreement from both a member of the House and the Senate. If objections arise, each chamber withdraws to consider it separately.

What might an objection be? Well, how about twin slates of electors from a state? US Code establishes that electoral votes from a state that lawfully certified its electors can't be thrown out, but if the votes haven't been certified or there are multiple sets of electors, some might be. All of this quickly spirals into weirdness at this point, with only two weeks to resolve any issues.

Noon on January 20: Inauguration.

All of this might give a stronger impression of Trump's ability to intercede than is perhaps warranted. As Vox's Andrew Prokop reports, efforts to appoint electors that don't match the recorded popular vote would often have to wend their way through a mix of Democratic and Republican state officials and land before sympathetic judges in order to work.

And it will take more than success in one state: Trump's deficit in the electoral college means he'd need multiple states to reject their popular vote totals.

That seems unlikely at the moment. The question is, though, whether Republican officials or fruitless legal proceedings manage to halt Trump's push to reject the election's outcome or if, instead, those officials will get swept up as it gains momentum.

Those in the Republican establishment are so far expressing private skepticism about Trump's efforts. But, then, they did in 2016, too - until he was the party's nominee.

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