I write this with the massive caveat that this election and the 2016 one were both marred with a lot of GOP malfeasance. This is not a story of two sides and yes I am a dyed in the wool Democrat, but if you were coming here thinking I was going to lie and pretend ‘we were wrong too,’ then you’re in the wrong place. I’m sure bad Democrats exist, but the Democratic Party has not participated in widespread election fraud or suppression since at least the passage of the Civil Rights Act. The Republican Party however is apparently trying to destroy the country, the Constitution, and the American way of life. So that’s nice.
But with that to one side, let’s get stuck in.
Firstly, the Federal government does not control voting. States do. And specifically the Secretary of State for each state oversees it. So, well prior to an election the state legislatures will pass laws for exactly how they intend to allow voting, count ballots, and — in Presidential elections — assign electors. This legislation must be passed and signed into law … about a month prior to the election itself. The Secretary of State controls various lesser details sometimes including aspects of registration and maintaining voter rolls, but given that they do so under the auspices of the office of the governor they theoretically are meant to operate transparently and rationally. Theoretically.
But I mentioned “assigning electors,” so let’s talk briefly about the Electoral College. Back in 2016 people were googling stuff like, “Where is the Electoral College,” which made me cry a little bit, but by now you probably already know most of this. It’s covered in Article II, Section 1 of the Constitution and then modified in the 12th Amendment and that latter part is sort of a long ridiculous story, but all you need to know for our purposes here is that our Founding Fathers were massive drama llamas: Hamilton couldn’t keep it in his pants, Burr got into huge arguments with everyone, Adams pouted just all the time and was very concerned about his height, and Jefferson … you know, let’s not even with Jefferson.
Without getting too into the weeds on this the Electoral College was basically designed to streamline the election of the US President in a time when there weren’t telecommunications and prevent the election of a “favoured son.” In its original inception it was meant to keep the runner up in the election as the Vice-President but remember what I said about Jefferson. And keep in mind that in the late 18th c. voting was considerably different than it is today.
With all that in mind, states have the right to appoint their electors as their legislatures see fit. So they could — if they wanted to — assign them at random, put into law that they must always vote for Mickey Mouse (this is probably an exaggeration), or assign them by the votes of each district. But outside of Maine and Nebraska states will generally assign all their electors to the Party which wins the majority vote from their state.
But, two key things there. First the states need to determine who won their state by certifying the vote, and second the electors assigned are for their Party, but they’re not really beholden beyond that. There are not a lot of penalties for so-called “faithless electors,” and there are no remedies. This is why in 2016 Hillary Clinton’s elector count was far lower than it should have been. Several Democratic electors tried to get the Republicans to go for a different Republican candidate and a few others just flew entirely off the handle.
Under 3 U.S.C. §7, all of this needs to be finished by the “first Monday after the second Wednesday in December,” which this year comes out to be December 14th. And yes, the eagle eyed will note that this law well postdates the Constitution, but that’s due to another Amendment paired with the development of telecommunications and is not terribly relevant to the topic at hand. There’s also a “safe harbour” provision under 3. U.S.C. §5 which — assuming I understand it — basically means all the foolishness needs to be fully sorted by December 8th.
But remember, I said that states handle their own voting. Certification of the vote varies in method and deadline by state, but pretty logically, all the due dates fall prior to December 8th. There exist remedies if the secretary of state drops the ball or if somehow the election materials get lost but my take on that law is that it is largely procedural. (Keep in mind though, I am a doctor of Palaeopathology as opposed to law.)
Once all this is completed 3. U.S.C. §15 comes into play. And I have a feeling this is where things are going to get — maybe not messy — but painfully boring. Electoral College votes once certified and sent by the states are counted in a joint session of Congress. Mike Pence, in his capacity as President of the Senate, opens up all the votes state by state and counts them during which time objections may be produced in writing but must be signed by a Senator and a Representative at least. This joint session starts on January 6th at 1 pm and may continue with reasonable recesses for five days. But if it is not resolved in five calendar days Congress is basically locked in there until they sort out their tallies.
If and when a tally for one of the candidates reaches 270 that candidate will be President.
For our purposes this means that Joe Biden will be “officially,” however you wish to understand that President-Elect on or about January 6, 2021 and will be inaugurated January 20, 2021. I entirely believe that various shenanigans will be employed by the GOP to try to mess up the certifications and then the tally, but for them to be successful they’d have to actually have a conspiracy with multiple low level moving parts and a lot of potential for disaster underway.
But, let’s pretend for a moment that this election were a lot closer and that the magical 270 total was not reached by either candidate. What happens in the case of either a tie or split tally? In this case we move onto 3. U.S.C. §19. Nancy Pelosi becomes President until someone (read: Joe Biden) “qualifies.” Now, technically, the succession goes Speaker of the House and if not them, then President pro-tempore of the Senate — currently Chuck Grassley. But the reason I’ve brought up the whole succession in the past was that we weren’t sure if the GOP would mess with the entire election or just the Presidential election. As it turns out they have done a lot of damage, but not so much that we need to worry terribly about Nancy Pelosi’s Speakership.
Also, just to be clear, as much as I hardcore stan Nancy Pelosi this isn’t really about her. She is currently Speaker and likely will win re-election, but my nightmare scenario was if the elections were sufficiently messed with such that there were multiple empty seats and nationwide special elections for the House such that the majority was not clear or even extant. But, the 117th United States Congress is … mostly elected as of writing and will be sworn in January 3rd. There’s 21 seats still outstanding and Democrats are still two shy of a majority, but one of the undecided races is California’s 34th district which is two Democrats going head to head and there are enough races where Democrats are ahead that it is all but certain that Democrats will maintain their majority in the House. Republicans only hold 198 seats and are not likely to make up the difference. By January 6th there will be a quorum in both houses of Congress and there will be a Speaker of the House.
Now, in the nightmare scenario where the Electors fail to produce a tally where any candidate receives at least 270, we return to the Constitution for the procedure on how a candidate would qualify and replace the acting President Nancy Pelosi, former Speaker of the House. In this situation the 12th Amendment has it covered again. This one was ratified all the way back in 1804 so it carries with it various assumptions about people’s honour that may no longer apply to certain members of Congress named Devin Nunes but it outlines a means by which the House will elect the President and the Senate will elect the Vice President.
The thing about this is, it does get a bit dicey here. Not only are we not talking about a general election but we’re not even talking about the Representatives electing the President. The Representatives in each state form a coalition and submit one vote. So that means in a state like California where all but Devin Nunes are Democrats (I’m kidding, California does have two other people who are Republican in a population of about 40 million) would only submit a single vote, and it would probably be blue. States that are mostly red and would submit a single red vote. The problem here is the same one with the Senate. Wyoming with a population of 549,914 people would have the same electoral weight as California with about 72 times that. So if you felt you were being disenfranchised by how Electoral votes and Representatives are allocated, you should hate this. This is considerably worse. Under this system Trump would probably win. Which is likely why Republicans didn’t undermine the entirety of the 2020 election: just the Presidential part.
Again though, while I won’t ever say, “never,” enough states will have certified their results by the due date that Joe Biden will have the 270 to be declared the winner.
But let’s take this to it’s most ridiculous extreme. Basically, I’m here to undermine Veep.
In this nightmare scenario not only would the President be chosen by the House, but effectively concurrently the Vice President would be decided by the Senate. And keep in mind we’ve still got our Speaker of the House President here if it’s after January 20th when the previous President’s term ends. The Senate votes normally to choose the Vice President and at the moment it’s somewhat questionable how that would go. Presumably it would be a Party-line vote, but as of writing the Senate is even 48 to 48 pending certification of Alaska’s and North Carolina’s results and two runoffs in Georgia. It could end up being 50 to 50 or it might be 52 to 48 in favour of Republicans. (There is an outside chance it could be 51 to 49 in favour of the Democrats but this is unlikely.) In a 50–50 split they keep voting until someone wins or … I guess forever, but if it’s 52 to 48 then there’s virtually no chance Pence loses.
If the Senate selects a Vice-President before the House figures out a President then Veep sort of had it right in that the Vice-President takes over the Presidency until a President qualifies, but it’s the same situation as with the Speaker of the House. Once someone qualifies as President in a House vote they will be President, the Vice-President reverts to Vice-President if they had assumed the office of President and to be entirely honest I’m not sure what would happen to the Speaker of the House or President of the Senate pro-tempore. I assume they would go back to their job and likely continue as Speaker or President of the Senate pro-tempore, but they will not have been doing that during their placeholder Presidency so if qualification is considerably extended someone else would have to fill their role.
The law is such that if the House and Senate are just hopelessly deadlocked and there is no tally of 270 Electoral votes for any candidate, then the Speaker may carry on in the duties of the President until the end of that Presidential term at which point there will be another proper election. God help us if it ever comes to that in this political environment.
This election was mostly free and fair. There was suppression and the Republicans are trying to disenfranchise voters, lower faith in our system, and commit various acts of electoral fraud, but despite everything people were able to get to the polls and have their votes counted. And we elected Biden and Harris to our Executive Branch. It’s done.
This means that as much as the GOP groans and wails and as many lawsuits as they throw at the board there would have to be multiple and egregious failures in the system to undo the vote. The grand QAnon “plan” to destroy our country has failed. So yeah, it’s going to be a ride until Biden is inaugurated and despite all my previous prognostication that things would go down pretty much exactly like this, I’m still a bit surprised that literally anyone voted the Trump Pence ticket. But it is over.
The important upcoming dates that should increasingly lighten your load are your state’s own certification date, Dec. 8th by which all various complaints and foolishness must be stated, Dec. 14th on which the Electoral College submits its votes, Jan. 3rd, when the 117th Congress is sworn in, Jan. 6th when a joint session of Congress will tally the votes and Jan. 20th when Biden and Harris will be inaugurated.
After that we just have to … you know … clean up all the messes Trump made.