What happens if we don’t know who won the US election?

Observers of U.S. presidential elections are accustomed to hearing political commentators, politicians, and sometimes voters state that the current election is the most important election of their lifetime. While that comment has become somewhat of a cliché, it is probably true that the 2020 U.S. presidential election is the most unusual election of our lifetime (at least as of this writing).

The global COVID-19 pandemic fundamentally altered the nature of the presidential campaign and debates, and it forced states to reexamine their election protocols. Within the past year, dozens of states have expanded vote-by-mail and early voting opportunities for voters. In some states, like Texas, early votes have already eclipsed the 2016 total votes cast. Indeed, some 93 million early votes have already been cast before Election Day. But, barring a landslide victory by either Trump or Biden, the winner of the 2020 presidential election may be uncertain for days, perhaps weeks, following Election Day. 

Why might this be the case? First, some states, like Pennsylvania, do not begin the process of counting their mail-in votes until Election Day. The Pennsylvania Secretary of State believes that the vast majority of votes in this battleground state will be counted by the Friday following Election Day. In other states, they will simply need extra time to process an unprecedented number of mail-in ballots.

Second, there is the question of whether there will be recounts or court challenges in the event of a close outcome in a given state. Both the Trump campaign and Biden campaign have made preparations for post-election litigation, and some experts believe that litigation in 2020 could be worse than it was in 2000 when the U.S. Supreme Court decided Bush v. Gore. The prospect of court challenges in state courts, federal courts, or both, raises the possibility of delaying the declared winner of a state’s Electoral College votes. 

Given the prospect for a delay in declaring a winner, it is important to keep several key dates in mind following Election Day. Each of these dates play an important role in the counting of Electoral College votes and officially certifying who will take the presidential oath of office on January 20, 2021. The exact dates vary from election to election, but the dates for 2020 and 2021 are as follows. 

1.    Safe Harbour Deadline 

The first key date is December 8. This is the so-called “safe harbour” deadline established by 3 U.S.C. §5. Under this law, if a state resolves any outstanding disputes regarding the outcome of its presidential election vote by the safe harbour deadline, Congress pledges to respect the outcome of the state’s vote. While meeting this deadline is optional, it assures that the outcome of a state’s certified vote will not be second-guessed by Congress when it meets in January to count Electoral College votes.

2.    Meeting of the Electoral College

The next key date is December 14. This is the day that the Electoral College meets to officially cast votes for president and vice president, per Article II, Sec. 1 of the U.S. Constitution and 3 U.S.C. §7. Failing to cast Electoral College votes on this date would likely mean that the state forfeits its Electoral College votes. After all, the Constitution requires that the day electors cast their votes “be the same throughout the United States.” Casting votes later than December 14 contradicts this constitutional requirement. 

3.    Counting of Electoral College Votes in Congress

On January 6, Congress meets to count the Electoral College votes submitted by the states. Assuming that all states finalize their votes by the December 8 safe harbour deadline, this process should go smoothly. However, if states miss the safe harbour deadline and if there is an objection to the Electoral College votes of a given state from both a member of the House of Representatives and the Senate, then a process unfolds according to the Electoral Count Act of 1887 (3 U.S.C. §15). In the event of an objection, each chamber of Congress must meet separately to debate and vote upon the objections. 

If the state in question has only submitted one set of Electoral College returns, then those votes will be accepted unless both the House and Senate vote to reject the Electoral College votes for that state.

If a state has submitted multiple sets of Electoral College returns, then whatever set of returns is deemed valid by both the House and Senate will be accepted. If there is no agreement between both the House and the Senate, then whatever set of returns were submitted by the governor of that state are presumed to be valid.

After counting the Electoral College votes, Congress will certify a winner – assuming that a candidate receives a majority, 270 or more, of the Electoral College votes. If no candidate secures a majority, under the Twelfth Amendment to the U.S. Constitution, a process begins where the House of Representatives votes for president (with each state’s House delegation receiving one vote), and members of the Senate will vote for vice president. The candidate receiving a majority of votes in the House becomes president, and the candidate receiving a majority of votes in the Senate becomes vice president. 

4.    Inauguration Day

Finally, at noon on January 20, 2021, whoever secures a majority of Electoral College votes or receives the majority vote of the House of Representatives becomes president. But what if no presidential candidate receives a majority vote in the House by Inauguration Day? Under the Twentieth Amendment, the vice president-elect becomes acting president until a president is elected by the House. And, in the worst case, if both the House and Senate are unable to select a president or vice president, then the Presidential Succession Act dictates who will serve as acting president. After the vice president, the line of presidential succession is the Speaker of the House, President Pro Tempore of the Senate, Secretary of State, Secretary of Treasury, Secretary of Defense, and continuing through all cabinet secretaries, in chronological order by date of their respective department’s creation. Although, some scholars have argued that the Speaker of the House and President Pro Tempore are ineligible to serve as acting president because they are not “officers” of the United States as required by Article II, Sec. 1, Clause 6 of the U.S. Constitution.

In all likelihood, we will know the winner of the U.S. presidential election within a few days following Election Day. But, in the event of a close election and protracted litigation over its results, these dates provide important milestones to resolve the outcome of the election and identify who will serve as the next president of the United States.       

Author biography

Kyle C. Kopko is a Adjunct Professor of Political Science at Elizabethtown College.He tweets at @KyleKopko. Image credit: White House/Flickr.