We are entering uncharted territory in the U.S. Presidential election. Moscow Mitch is technically correct that the President has the right to avail himself of all legal remedies related to challenging the election results. But that’s not saying much. Technically, I have the right to file an election contest in my state challenging the results of several issues that were on the ballot last Tuesday. But I have no valid legal claims (or at least no evidence supporting any of those claim), and I would be facing sanctions for filing a frivolous case if I tried. Apparently, the president of the United States is exempt from the rules requiring a good faith basis for filing a case.
The closest that we have been to this type of obstruction was 2000 in Florida. Of course, in 2000, the election came down to one state, and that state was close enough to trigger an automatic recount. And where things went off the rails was that the parties could not agree on the proper way to conduct that recount. As a result, it is debatable whether there ever was a proper recount in Florida.
At least until Trump surrenders, there are two different lines by which things will progress. The first involves the Presidential Transition Act. Under the provisions of that act, there is a transition process which includes office space, the ability to employ staff, and access to government materials for the president-elect and vice-president elect. The key part of the act for the current situation is the triggering language which relies upon the determination of the Administrator of the General Services Administration. Under that language, those rights trigger upon the determination of the Administrator of the “apparent successful candidate” in the election. The big problem with the act is that it does not define how the Administrator determines who is the “apparent successful candidate.” And, in the past, this provision has not been an issue. In the first fourteen elections held under the Act, the identity of the apparent successful candidate has been clear within forty-eight hours of the election in thirteen elections. The only exception, as noted above, was 2000 in which it was clear that there was no apparent winner until Florida could complete its recount. If, as appears to be the case, President Trump has made clear that the Administrator of the GSA should not recognize apparent President-elect Biden as the apparent President-elect, then this dispute may require a petition for writ of mandamus. (A writ of mandamus compels an official to comply with a ministerial duty.) The big issue in such a case would be the proper standard for the exercise of the duty and whether that standard is clear enough to give rise to a ministerial duty in this case. Of course, the risk is that a court might decline to issue the writ because the law lacks any precise standard. The Biden Transition Team will have to balance off the risk of a bad result in a case against the reality that President Trump and the Administrator of the GSA seem intent on ignoring both the language and the spirit of the Presidential Transition Act.
On one level, the Biden Transition Team is perfectly capable of functioning even if Trump and his underlings continue to obstruct the law. Biden has named his transition team, and the campaign is certainly capable of renting the office space and hiring the clerical staff necessary for the transition team to do its job. Similarly, the transition team has people who are experts in their fields and with the government experience to be mostly current in where things currently stand. They know the potential candidates for the 500 or so presidential appointees that President-elect Biden will be having to fill on January 20. And, unofficially, they have contacts with the career bureaucrats in most of the agencies and should have some idea of what needs to be done to fix the mess that Trump will be leaving behind. The big problem (which will get bigger as we get closer to the election) will be national security. While Donald Trump may not think much of the daily intelligence briefing, most serious national leaders have a different view of the matter. There are always some threats simmering somewhere that require accurate information to prevent potential disasters. Not wanting a new Administration to be blindsided on Day One by these looming crises is one of the main reasons for the Presidential Transition Act. Not knowing where things stand today is minor. Not having that information in late December will be much more of a problem.
If the Trump Administration does not intend to comply with the law at the present time, that brings us to the other line of what will be happening over the next several weeks. As noted at the start, Moscow Mitch is technically correct that we do not yet have official election results in most states.
Instead, the period immediately after election day is a very ambiguous status. Every state has what is referred to as a canvassing or verification or certification process. As those different names imply, there are several different things happening at the same time. First, states are continuing to canvass or count votes. This typically involves reviewing absentee and provisional ballots (including overseas and military ballots) to see which ones are valid and then counting those ballots. As noted before, different states have different deadlines for receiving absentee ballots (and they also have different deadlines for when those who cast provisional ballots can provide further information to local election authorities).
The second part of the canvass period is verifying the count. In most states, at the very least, this process includes running post-election checks on voting machines. This typically involves using a “test deck” in which the actual count is known and seeing if the machine accurately counts those ballots. If a machine has a problem, the ballots that were run through that machine may need to be recounted on a different machine. In some states. this process also includes an audit. In the typical audit, a random selection of precincts (at least two or three) are chosen to do a hand recount of a random selection of races (often certain categories are required but which race within that category is used is random) to determine if the results of the hand count match the machine count. If the hand count shows any significant deviation from the machine count the audit is expanded.
And the final part of the canvass is certifying the results. The other two steps allow the election authority in each county (or other local jurisdiction in states that use something other than the county as the unit of elections) to finalize the count from that county. For local races, this certification is the official declaration of results for those elections. For state races, those numbers are sent to the state election authority who then finalizes the state count and announces the final official result for state and federal offices.
As with other matters related to elections, the certification deadline is set by state statute. In many cases, the statute provides a range of time. In other words, the local election authorities may be directed that they are to have completed their canvass no sooner than day X (typically a day or two after the deadline for receipt of all ballots and the curing of provisional ballots) and no later than Y days after the election. The state election authority is then directed to complete its part of the canvass as soon as possible after the receipt of all of the reports from the local election authorities but no later than day Z.
For the key states, we have the following deadlines for state certification of results: Georgia — November 20; Pennsylvania — November 23; Michigan — November 23; Alaska — November 25; Arizona — November 30; Wisconsin — December 1; Nevada — December 1; California — December 11. (I include California simply because of the number of electoral votes). While some of these states allow state initiated recounts (for example Georgia), most states trigger the ability of a candidate to request a recount or file an election contest to the certification of the official results. After all, it is impossible to request a recount based on the final vote total until there is a final vote total; and it is impossible to determine if an alleged act of fraud is large enough to alter the results of the election until you have a final margin. Obviously, as more states announce their official results and issue certificates of election to slates of electors, it will become harder to credibly maintain that there is not an apparent winner (leading back to the potential mandamus case discussed above). Today, it is possible to argue that the election in the close states is still in doubt regardless of what statisticians working for news organizations think. Once those states have officially announced the winner, that argument is not plausible.
And that leads to the first of three key dates. As has been discussed in the past, the federal law governing the presidential election has what is called the “safe harbor” provision. Under federal law, when all state processes for challenging the results in a state have been completed, the state executive (typically the Secretary of State) issues a “certificate of ascertainment” naming the individuals who have won the office of elector. If the particular state issues that certificate under the laws of the state that were in effect on election day prior to the statutory deadline (this year — December 8), the selection of those electors is presumptively valid and it takes the vote of both houses to reject the certificate. Since the enactment of these provisions, there has never been a circumstance in which both houses have voted to reject the certificate; and the votes will not be there this year to reject any certificate of election issued based on the popular vote in a state.
The electors actually meet in their respective state capitols on the first Monday after the second Wednesday in December. (For this year, that date is December 14.) That date is the second key date. At that time, each elector casts a vote for president and a vote for vice-president. Those votes are counted, and the electors then complete certificates of votes stating the total votes for each candidate given by the electors in that state. Because these are public events and public documents, the actual electoral vote will be known by the end of the day on December 14. At this point, any claim that the result of the election is in doubt will be frivolous. In short, if the Administrator has not ascertained that Joe Biden is the apparent President-elect by December 15, it would be highly likely that a writ of mandamus would issue to the Administrator if the Biden campaign were to go that route.
The final key date is January 6. On that date, Congress will meet in joint session to formally review the fifty-one certificate of votes and count those votes. Once that count is completed, Joe Biden will not be merely the presumptive or apparent president-elect, he will be the president-elect.
Of course, two weeks is a short time frame for getting up to date on the latest information and adjusting plans based on recent developments. The Presidential Transition Act is intended to give the apparent president-elect and his team more time to consider recent intelligence. But, as we have seen for the past four years (and anybody who has followed President Trump’s business career), President Trump considers the law to be mere suggestions and will only comply with the law when forced by somebody else to do so. We can hope that, at some point, things become clear enough that President Trump and his administration will face reality. But based on past experience, I would not hold my breath.
For now, President-elect Biden is giving Trump enough time to play out his hand. But at some point soon, the Biden Transition Team will have to consider legal action. My hunch is that we will see a writ of mandamus filed as soon as enough of the closely contested states have certified their election results and issued certificates of ascertainment.
Meanwhile, while waiting for the legal maneuvering to reach their inevitable conclusion, we will be sitting back and waiting for the announcements of senior positions to begin — probably shortly after Thanksgiving.
