There will be a president-elect by mid-December, but not before considerable fighting and legal wrangling over the results in multiple closely contested battleground states, as the race for the White House remains unresolved three days after Election Day and counting.
Democratic presidential nominee Joe Biden has become the prohibitive favorite to secure an Electoral College majority as he appears to sit just six votes away from the required 270 and trends in most of the four remaining uncalled states are favorable to him. President Trump is still narrowly ahead in three of those states, while Biden clings to a slim lead in the fourth. There also remain enough uncounted ballots in Arizona, which the Associated Press called for Biden, to swing its 11 electoral votes potentially to Trump.
Holding Arizona plus a victory in any of the uncalled states could hand Biden the presidency, but the media tallies are unofficial. No electoral votes have formally been awarded yet. The results in each state have to be certified. The Trump campaign has now filed lawsuits challenging aspects of the counting process in multiple states, in addition to requesting a recount in Wisconsin. Nevada, North Carolina, Georgia, Pennsylvania, and Arizona could all still swing based on uncounted votes.
“IF YOU COUNT THE LEGAL VOTES, I EASILY WIN THE ELECTION! IF YOU COUNT THE ILLEGAL AND LATE VOTES, THEY CAN STEAL THE ELECTION FROM US!” Trump said in a statement (emphasis in the original), while Biden tweeted, “Be patient, folks. Votes are being counted, and we feel good about where we are.”
Even after the counts are complete, the various lawsuits will have to work their way through the states’ and or federal court systems, potentially going all the way up to the Supreme Court, though that would only happen on appeal and if the justices agreed to hear the case. The Trump campaign is seeking to enforce state rules against accepting ballots after Election Day, where applicable, and ensure clear postmarks on mail-in ballots. They also want to guarantee that Republican election observers are allowed access to the counts.
On Thursday, the Trump campaign won a favorable ruling on allowing its poll watchers access in Pennsylvania, which it touted as “a major victory for election integrity, election transparency, all Pennsylvania voters, and the rule of law.” But the Trump team was rebuffed on ballot challenges in Georgia and Michigan the same day. Even as this barrage of lawsuits began, the full Trump legal strategy is still taking shape, and much of the battle remains in the court of public opinion.
“Exactly what the president said would happen is happening,” said Trump campaign manager Bill Stepien. “We see Democrats lying, cheating, stealing all over the country every night. We go to bed with a lead, and every night, new votes mysteriously are found in a sack.”
The interruption of vote-counting in several states where Trump led on election night, followed by a lead change after the resumption of counting, has aroused suspicions among the president and his supporters.
Far more early and mail-in voting took place in this election than ever before due to the ongoing pandemic. Some states, including Pennsylvania, do not allow these ballots to be processed before Election Day, which has contributed to the delays. Trump has made no secret of his distrust for this process, and some have questioned whether certain states have the infrastructure in place to process all these ballots accurately in a timely manner.
The 2000 recount battle between George W. Bush and Al Gore lasted 36 days, and unlike the Trump-Biden impasse, it concerned only a single state. The Supreme Court handed down the Bush v. Gore decision, which left Bush with the lead in Florida, whose electoral votes decided the election, on Dec. 12. Gore conceded on Dec. 13.
“Now, the U.S. Supreme Court has spoken. Let there be no doubt, while I strongly disagree with the court’s decision, I accept it,” Gore said. “I accept the finality of this outcome, which will be ratified next Monday in the Electoral College. And tonight, for the sake of our unity as a people and the strength of our democracy, I offer my concession.”
The Bush v. Gore decision was controversial in part because it was a 5-4 ruling with the conservative justices, all nominated by Republican presidents, finding in favor of Bush. The Supreme Court now has a 6-3 majority of conservatives nominated by Republicans, three of them Trump appointees. Trump has said he never discussed election lawsuits with the most recent of these, Judge Amy Coney Barrett, and has indicated he would respect a Supreme Court decision saying he had lost.
This year, the first real deadlines are a bit earlier than in 2000. Presidential electors will meet and cast their votes in each state on Dec. 14, as federal law requires this to happen on Monday after the second Wednesday in December of presidential election years. But the law also mandates a “safe harbor” of six days before this whereby states must have their slates of electors set, meaning any contested state election would have to be resolved by Dec. 8.
Congress could change these laws, as the Constitution leaves all these specifics up to lawmakers. But with different parties controlling each house and only the Republicans having an incentive to draw out the process, this is extremely unlikely.
Electoral votes have to be transmitted to Congress no later than Dec. 23. Then Congress meets in a joint session on Jan. 6, 2021, to certify the results, which would appear to be the last possible date at which anything could be contested. Vice President Mike Pence, as the constitutional president of the Senate, would preside over this session.
Based on past precedent, however, the Supreme Court would likely want to decide, or decline to grant an appeal on, any outstanding lawsuits that might swing the election before the states decide on their electors on Dec. 8. A series of unfavorable court rulings before that, combined with Biden’s growing national popular vote advantage, could increase pressure on Trump to concede unless something significant changes in the ongoing counts.
The Trump campaign has said it has devoted “absolute legal killers” to the election fight, according to top campaign official Jason Miller.
The Biden campaign is equally braced for a legal battle.
“We’re winning the election. We’ve won the election. And we’re going to defend that election,” said Bob Bauer, former White House counsel under Barack Obama and an attorney for the Biden campaign.
