Despite President Donald Trump’s refusal to concede his defeat, Joe Biden will be confirmed as the winner of the presidential election this Tuesday — and again next week and again in early January before he’s finally sworn in.
This Tuesday, December 8, is what is known as the safe harbor deadline. If states have settled their presidential election results by this date, federal law states that those results shall be considered “conclusive” for the purpose of counting electoral votes. That doesn’t quite set the results in stone just yet, as I’ll explain. But overall, nearly every state has certified its results already, with the few remaining ones expected to do so soon.
The next big date is Monday, December 14, when the Electoral College votes. In each state and the District of Columbia, the 538 electors who make up the Electoral College will cast the votes that will technically make Biden the next president. There’s little drama here. The states Biden won have appointed elector slates of Democrats, who are certain to vote for Biden. But it’s the next step in making things official.
Then, on Wednesday, January 6, Congress counts the electoral votes. This is also mainly ceremonial. We’ll know the count in advance because the votes will be public on December 14. The one minor hitch is that a Trump ally in the House plans to challenge that count. But for that challenge to succeed, both the House and the Senate would have to agree to overrule the electoral votes. The Democrat-controlled House obviously wouldn’t go along with this, so the challenge won’t change the outcome.
Two weeks after that, on January 20, Biden will be inaugurated as the next president.
The next week will bring two deadlines
Trump’s floundering effort to overturn the results of the election has had several focuses. He’s (unsuccessfully) tried to prevent key states Biden won from certifying their results. He’s (unsuccessfully) tried to get judges to step in and prevent certifications. And he’s (unsuccessfully) tried to get Republican state legislators in those states to step in and appoint Trump-supporting electors.
Time is about to officially run out on all these fronts.
First, this Tuesday, December 8, is the safe harbor deadline. This is set in federal law, which says that if a state has resolved any “controversy or contest” over the appointment of electors by this day, that resolution is “conclusive, and shall govern in the counting of the electoral votes.”
However, the safe harbor deadline doesn’t necessarily set the state results in stone. Its main purpose was to prevent results settled in the states from being later overturned by the federal government — to grant the states “safe harbor” from federal interference.
This year in particular, no substantive effort to overturn the results (in Congress, the courts, or state legislatures) has gained steam, so safe harbor probably isn’t necessary. It’s mainly relevant because states themselves have targeted this deadline to try and have their results finalized. And indeed, every state is on track to have its results certified and electors appointed on schedule (though some lawsuits are still pending).
The more consequential approaching date is on Monday, December 14, when the Electoral College actually casts its votes.
Each state, in accordance with the vote results, appoints a slate of people as electors — Biden’s preferred people are appointed in states where Biden won, and Trump’s people are appointed in states where Trump won. Together, those 538 people make up the Electoral College. Their votes — which will be cast separately in each state and the District of Columbia and announced publicly — officially have the power to make the next president.
There have been “faithless electors” in the past, people who didn’t vote for the candidate who won their state, but such defections are rare (most electors are picked for the job by their party precisely because they are strong partisans), and Biden’s lead is big enough that it’s incredibly unlikely enough faithless electors could overturn it (37 electors would have to defect).
So the Electoral College vote will also be mainly a formality. But it will be an important one. Because after it, statewide Republican officials and GOP state legislators — the politicians Trump has tried to lobby to overturn the results — will no longer play a role in the process. The action, such as it is, will move on to Congress.
Democrats control the House, so any challenge to the results will fail in Congress
On January 6, 2021, a joint session of the newly elected Congress will convene to count the votes cast by the Electoral College the previous month. This congressional count is the final formal step in making the presidential election results official before the inauguration itself.
Usually, this is a formality. But sometimes, there’s a last-minute kerfuffle because there is a process by which members of Congress can challenge the vote count. We likely will get such a challenge — Rep. Mo Brooks (R-AL) has said he will file one, though he needs to find at least one senator to join him for the challenge to advance.
This would not be unprecedented. In 2005, Rep. Stephanie Tubbs Jones (D-OH) and Sen. Barbara Boxer (D-CA) made such a challenge to George W. Bush’s win in Ohio. (In 2017, some House Democrats tried to challenge Trump’s win in certain states, but the attempt was fruitless because no senators would join them.)
If a representative and senator support a challenge, what happens next is that the joint session of Congress splits up, and the House and Senate will each hold a vote on the challenge. Here’s the key part, though: Unless a majority in both the House and Senate vote to sustain the challenge, it will fail.
So because Democrats control the House, any attempt to overturn the election for Trump will surely be voted down by them. It may well fail in the Senate as well; several Republican senators have recognized Biden’s victory.
That means this challenge will basically just be a stunt and it won’t actually overturn the outcome. What it would do is guarantee a recorded vote in both the House and Senate about whether they should allow Biden’s win, which could put some swing state or swing district Republican members of Congress in an uncomfortable position. (This could be a particular issue for some Senate Republicans in 2022 — do they risk a primary challenge by recognizing Biden’s win or do they back Trump’s challenge and endanger their general election chances?)
In 2005, the vote on Tubbs Jones and Boxer’s challenge to Bush’s Ohio win resulted in its overwhelming rejection — by 267-31 in the House and 74-1 in the Senate. Yet if Trump himself is still disputing the results, and much of the Republican electorate agrees with him, the tally may not be so lopsided this time around.
But again, because Democrats control the House, there’s no plausible way for a challenge to succeed. Biden’s win is already clear — and it will just be made clear again on each of these key dates.