A LOT HAS happened over the past six days, and there is still a long way to go before US President-elect Joe Biden is officially inaugurated in January.
Although Biden has been projected to win the election by US media outlets (as is traditional with each presidential election) votes are still being counted and the results are yet to be certified.
Media outlets’ projections are made by teams of experts and Biden is being named as the winner due to the statistical improbability of President Trump being able to make up the difference based on the number of votes left to count in the key swing states.
However several lawsuits have already been filed by the Trump campaign team in recent days.
Let’s take a look at how things are likely to play out between now and 20 January when Biden and Vice President-elect Kamala Harris are set to enter the White House.
Where are we now?
An estimated 159 million Americans cast their votes for a new president either before or on 3 November.
People also voted for new elected members of the House of Representative, the Senate and in individual states there were a host of other votes on issues like reintroducing wolves and legalising recreational marijuana.
It took until Saturday before the Associated Press and other outlets made their official calls on a winner, even though the outcome in most states was clear by Wednesday or Thursday.
Heading into the weekend the tide had well and truly turned in Biden’s favour as he pulled ahead in Georgia and Pennsylvania.
Pennsylvania turned out to be the deciding state in calling the election, with outlets like CNN and the Associated Press making the call for a Biden victory after the state was called at around 5pm on Saturday.
That put him over the magic number of 270 Electoral College votes – and if he goes on to win in other key states where counting is continuing, like Arizona and Georgia, he could rack up 306 votes by the time the process concludes.
So if Biden’s win is a projection, when will it be official?
As a reminder, the winner of the US presidency is not decided by the popular vote, but through the Electoral College.
There are 538 members of the Electoral College, divided up between the US states with the number from each state based on its population size.
A state has one elector for each of its members of the House of Representatives, and one for each of the state’s two senators.
California – the most populous state -has 55 electors, Texas has 38, and New York and Florida have 29 each.
At the other end of the spectrum, lightly populated Alaska, Delaware, Vermont and Wyoming have only three electors each.
Each elector is a real person and they are picked in a two-part process – first by political parties in each state and second by voters during the general election.
When voters cast their ballot for a presidential candidate, they are voting to select their state’s electors.
The potential electors’ name in some states appears on the ballot below the name of the presidential candidate.
Biden’s win will be made official after the electors in each state cast their votes for the new president.
Electors are due to vote on 14 December and Biden is set to be inaugurated on 20 January 2021.
These votes must be received by the president of the Senate and the head of the National Archives and Records Administration in the US no more than nine days later.
On 6 January congress is due to meet to count the votes. The result is announced by the President of the Senate, currently Vice President Mike Pence.
Once the minimum of 270 votes are achieved, the president-elect and the vice president-elect will be set to take the oath of office and begin their roles on 20 January.
What if Trump refuses to concede?
Conceding isn’t a legal requirement and is entirely optional, but has been the norm for losing candidates in the US since the late 1800s.
Daniel Geary, an associate professor of US history at Trinity College Dublin, said there has never been a time when a candidate impeded the inauguration of a new president by refusing to concede.
“This is really the only case where a president has clearly lost the election and refused to concede,” Geary told TheJournal.ie.
There were the two disputed elections in 1876 and then the 2000 election, but we never had a candidate refuse to concede.
Prior to the election, Trump never said he would concede and in September, he refused to guarantee that he would transfer power if he lost the election.
When asked at a White House press conference whether he was committed to the peaceful handover of power, he said: “Well, we’re going to have to see what happens.”
Trump also seemed to suggest annulling mail-in ballots, noting that in such a scenario, he would remain in power.
“Get rid of the ballots and you’ll have a very peaceful – there won’t be a transfer, frankly. There’ll be a continuation.”
Geary said: “It’s hard to see Trump making any concession and saying ‘I lost the election’… The narrative that Trump won doesn’t seem like it will go away, unfortunately.”
The only thing that’s anywhere close [to the current situation] is 2000, but I think this is different because in that case, Al Gore was willing to concede when things had gone against him.
The 2000 election between Al Gore and George W Bush was contested in the Supreme Court, after a dramatic recount process in Florida, but Gore conceded in the end.
In 1876, the election between Democrat Samuel Tilden and Republican Rutherford Hayes resulted in congress passing a law to decide the results of the disputed vote.
What are the legal challenges Trump has put forward?
The Trump campaign has mounted legal challenges to the results in several states, but no evidence has emerged of any widespread irregularities that would affect the results.
Trump plans to file another string of lawsuits in the coming week, according to his lawyer Rudy Giuliani, who said he had “a lot of evidence” of fraud.
Giuliani told the Fox News yesterday that Trump’s team would file a lawsuit in Pennsylvania today against officials “for violating civil rights, for conducting an unfair election [and] for violating the law of the state”.
“The first lawsuit will be Pennsylvania. The second will either be Michigan or Georgia. And over the course of the week, we should get it all pulled together,” Giuliani said.
Last week, the Trump campaign team filed lawsuits in Pennsylvania, Michigan, Georgia and Nevada as Biden moved closer to the presidency.
His team demanded better access for campaign observers at count centres and also made unsubstantiated claims about absentee ballots.
The 2000 election battle between Bush and Gore was brought to the Supreme Court. The result hinged on the outcome in Florida where Bush led with just over 500 votes.
In this instance, Trump has a much larger deficit of votes in states like Pennsylvania where he is down by nearly 50,000 votes. He is also down in multiple other states by a significant amount.
The Supreme Court has been cautious about its involvement in voting matters decided by states, and is aware that it risked its standing as an independent body in the wake of the 2000 ruling on Florida.
A case this time around would put the political leanings of the court’s six conservative and three liberal justices in the spotlight – especially on Amy Coney Barrett, who joined the court only last month.
Trump said he rushed her appointment in part so she could be in place to hear any election cases.
What about recounts?
Recounts can be requested or, in some cases, are automatically triggered if the margins are small between the two leading candidates.
Georgia announced on Friday it would recount election votes as results showed Biden leading by just over 1,500 votes in the state.
On 5 January, Georgia will also see two runoff races to settle which party – Democrat or Republican – will control the Senate.
Recounts have played a role in changing the outcome for local elections in the US.
“At local levels yes, but votes have to be very close to be overturned,” Daniel Geary said.
Trump has almost no chance of overturning this election. Even if he were to succeed in one state, it wouldn’t be enough.
What’s all this about ‘faithless electors’?
At the end of the day, overwhelmingly, electors vote in line with the popular vote in their state and the projected presidential winner is inaugurated in January.
However, nothing in the US Constitution obliges electors to vote in one way or another.
If some states require them to respect the popular vote and they do not, such so-called ‘faithless electors’ are subjected to a simple fine.
In July 2020, the US Supreme Court ruled that states could impose punishments on such disloyal voters by establishing laws mandating electors to cast their votes according to the popular vote in that state.
Between 1796 and 2016, around 180 electors cast votes contrary to the presidential or vice presidential candidate who won their state. But faithless electors have never determined a US election outcome.
A few electors voted or attempted to vote for a different candidate in 2016, but it is extremely rare for an elector to defy the will of voters in the state.
The issue of faithless electors has not been impactful “in a very long time”, Geary said.
Technically electors can vote for whoever they want, but in practice they’re chosen by the parties to be loyal and there were a few that broke from Trump because they felt he was unfit, but that’s not going to happen this time.
All in all, there’s a lot of ‘process’ due to happen between now and 20 January when, all going to plan, Biden will become the 46th president of the United States.
With reporting by AFP
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