Despite President Donald Trump’s refusal to admit defeat, Joe Biden will be confirmed as the winner of the presidential election this Tuesday – again next week and in early January, before he is finally sworn in.
This Tuesday, December 8th, is the so-called Safe Harbor Period. If states have determined their presidential election results by that date, federal law provides that those results are considered “conclusive” for the purposes of counting votes. That doesn’t quite set the results in stone yet, as I’ll explain. Overall, however, almost every state has already confirmed its results, and the few remaining are expected to do so soon.
The next big date is Monday the 14th of December when the Votes of the electoral college. In each state and District of Columbia, the 538 voters that make up the electoral college cast the votes that technically make Biden the next president. There is little drama here. The states that Biden won have nominated electoral rolls of Democrats who are sure to vote for Biden. But it’s the next step in making things official.
Then on Wednesday January 6th The Congress counts the votes. This is also mainly ceremonial. We will know the count in advance as the votes will be released on December 14th. The only minor problem is that a Trump ally in the house is planning to question that count. For this challenge to be successful, however, both the House and the Senate would have to agree to override the electoral votes. The Democratic-controlled house would obviously not agree to this, so the challenge will not change the outcome.
Two weeks later, on January 20th, Biden is inaugurated as the next president.
The next week will bring two deadlines
Trump’s struggling efforts to reverse the election results had multiple focal points. He has tried (unsuccessfully) to prevent key states Biden won from confirming their results. He tried (unsuccessfully) to get judges to intervene and prevent certifications. And he’s tried (unsuccessfully) to get Republican lawmakers in those states to step in and appoint Trump-supporting voters.
Time is officially running out on all of these fronts.
First, Tuesday, December 8th, is the safe harbor deadline. This is set out in federal law, which says that if a state has resolved a “controversy or dispute” to date over the appointment of voters, that decision “is conclusive and is decisive in the counting of votes”.
However, the Safe Harbor deadline does not necessarily set government results in stone. Its main purpose was to prevent the results stipulated in the federal states from being canceled later by the federal government – to give the federal states a “safe haven” from federal intervention.
This year in particular, no significant efforts to reverse the results (in Congress, in court, or in state legislature) have gained momentum, so a safe haven is unlikely to be required. This is particularly relevant because the states themselves set this deadline in order to try to finalize their results. Indeed, every state is on track to certify its results and appoint voters on time (although some litigation is still pending).
The following approximation date is Monday, December 14th, when the electoral college actually casts its votes.
In accordance with the results of the vote, each state nominates a group of people to vote. Biden’s preferred people are appointed in states where Biden has won and Trump’s people are appointed in states where Trump has won. Together these 538 people make up the electoral college. Their votes, cast separately and publicly announced in each state and District of Columbia, officially have the authority to appoint the next president.
In the past there have been “unfaithful voters,” people who did not vote for the candidate who won their state, but such defects are rare (most voters are chosen for the job by their party because they are strong partisans ), and Biden’s lead is big enough that it is incredibly unlikely that unfaithful voters could overturn him (37 voters should overflow).
So voting in the electoral college will also be mainly a formality. But it will be important. Because after that, nationwide Republican officials and GOP lawmakers – the politicians Trump tried to advocate reversing the results – will no longer play a role in this process. The action as it is will move on to Congress.
Democrats control the House so any challenge to the results in Congress will fail
A joint session of the newly elected Congress will be called on January 6, 2021 to count the votes cast by the electoral college in the previous month. This Congressional census is the final formal step in making the pre-inaugural presidential election results official.
Usually this is a formality. But sometimes there is a last minute kerfuffle because there is a process that members of Congress can use to challenge the number of votes. We’re likely to get a challenge like this – Rep. Mo Brooks (R-AL) has announced that he will be filing one, though he’ll need to find at least one Senator to join him for the challenge to move forward.
This would not be unprecedented. In 2005, MPs Stephanie Tubbs Jones (D-OH) and Senator Barbara Boxer (D-CA) presented such a challenge to George W. Bush’s victory in Ohio. (In 2017, some House Democrats tried to question Trump’s victory in certain states, but the attempt was unsuccessful as no senators would join them.)
If a representative and senator support a challenge, the joint session of Congress will next split up, and the House and Senate will each vote on the challenge. But here’s the crucial part: unless a majority in both the House and Senate votes to keep the challenge going, it will fail.
With the Democrats in control of the house, any attempt to overturn the election for Trump will certainly be opposed by them. It can also fail in the Senate; Several Republican senators have recognized Biden’s victory.
That means this challenge is basically just a stunt and doesn’t really tip the result over. What it would do would be to guarantee a recorded vote in both the House and Senate on whether to allow Biden’s victory, which could put some Swing State or Swing District Republican Congressmen in an awkward position. (This could be a particular problem for some Senate Republicans in 2022. Are you risking a primary challenge by recognizing Biden’s victory or supporting Trump’s challenge and jeopardizing their general election chances?)
In 2005, the vote on Tubbs Jones and Boxer’s challenge to Bush’s Ohio victory resulted in an overwhelming rejection – 267-31 in the House of Representatives and 74-1 in the Senate. But if Trump himself still denies the results and a large majority of Republican voters approve of him, the balance sheet may not be so bad this time around.
But again, there is no plausible path to a successful challenge as the Democrats control the house. Biden’s victory is already clear – and it becomes clear again in each of these key dates.
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