President Trump is refusing to concede the election. Most Republican senators, including Senate Majority Leader Mitch McConnell, won’t yet acknowledge that president-elect Joe Biden won. And Secretary of State Mike Pompeo said Tuesday there will be a “smooth transition to a second Trump administration” (though perhaps he was joking).
So, you may be wondering ... what’s going to happen?
With GOP politicians’ rhetoric all over the place, it’s useful to focus on concrete matters. Two things will happen over the next five weeks that ordinarily would be formalities, but in a disputed election will be crucial.
First, states will certify their election results — December 8 is the target date set in federal law, but most states have set earlier deadlines. Second, once state results are certified, the Electoral College will cast the votes that will officially choose the next president, on December 14.
Both of these processes are currently on track to make Biden the next president. And despite all the sound and fury, nothing happening yet appears likely to get in the way of either process.
That could change, however. The dangerous scenario would be if some combination of Republican state officials, Republican legislators, and Republican-appointed judges attempts to block the certification of results in key states Biden won, or to replace Biden electors with Trump electors — likely citing assertions that the election results were plagued by some type of fraud.
But up to this point, Trump’s lawsuits have had little success. Republican state officials involved in the counts have insisted they’ve found no fraud, and there are no solid plans among GOP state legislators to change the outcome. To assess whether Trump’s ploy to overturn the election results is successful, keep an eye on whether any of these change in the coming weeks.
The state of things
Currently, Biden leads by about 146,000 votes in Michigan, 48,000 votes in Pennsylvania, 36,000 votes in Nevada, 20,000 votes in Wisconsin, 14,000 votes in Georgia, and 12,000 votes in Arizona. (All of these states, except Georgia and Arizona, have been called for Biden by every major election analyst desk.)
For Trump to get 270 electoral votes, he would have to change the outcome in at least three of those states — a very tall order. Counting is still continuing, but it’s nearly done in all of these states.
In some of these states, there could be recounts. For a much closer election in only one state, it would be possible that a recount could change the outcome. But recounts typically don’t change the initial tally much. Out of more than two dozen statewide recounts since 2000, the most an initial vote count has changed after the recount was 1,247 votes (that’s the 2000 Florida presidential election). So don’t expect recounts to save Trump when he’s down by 12,000 or more votes in all these states.
Certifications and electors are the two crucial next steps
Once the counting (and in some cases recounting) is completed, the next step is for these state officials to officially certify these vote totals — and then, officially appoint the winner’s chosen slate of electors (the people who make up the Electoral College and cast the votes that choose the next president).
Republicans who have been sympathetic toward Trump’s refusal to concede, such as McConnell, have pointed to these two processes — certifications and electors — as a deadline of sorts for challenges.
“At some point here we will find out finally who was certified in each of these states and the Electoral College will determine the winner,” McConnell said Tuesday.
So for Trump to overturn the results of the election, he would have to prevent at least three of the six key swing states — Michigan, Wisconsin, Pennsylvania, Nevada, Arizona, and Georgia — from certifying their results showing Biden winning and/or appointing Biden electors.
State officials appear unlikely to go along
If the law and the facts were all that mattered, Trump’s prospects for blocking the certification of results or the appointing of electors would be nil.
But one question is whether Trump can harness the power of raw partisan politics to make it happen anyway, by asserting that the election is fraudulent, and getting various Republican legislators, state officials, or GOP-appointed judges to fall in line.
As far as certifications are concerned, the early signs have not been encouraging for Trump. One Republican secretary of state in a key swing state is Brad Raffensperger of Georgia, and he has pushed back against assertions that voter fraud changed the outcome:
In Arizona, though Republicans control the state government, Democrat Katie Hobbs, the elected secretary of state, is in charge of certifying the state’s elections. “We have no irregularities, we have no fraud,” Hobbs said last week. Nevada has a Republican secretary of state, but Biden has a lead of nearly 3 percentage points there, which looks safe.
Pennsylvania has a Democratic secretary of state as well. In Wisconsin and Michigan, bipartisan boards are in charge of certifications. All four states have Democratic governors. None of them are going to go along with Trump’s baseless claims that the election was stolen.
Accordingly, the Trump campaign has also been filing a flurry of lawsuits in state and federal court attempting to challenge the outcomes and delay state certifications of results. None have been particularly successful, but it’s possible that some will land before conservative judges who will find reasons to side with the Trump campaign. And of course, the last stop of any federal lawsuit is the Supreme Court.
There are also Republican legislators and GOP-appointed judges
Though Democrats control most key state offices in the six key swing states Biden won, there’s a catch — Republicans control the state legislatures in five of them (Michigan, Wisconsin, Pennsylvania, Arizona, and Georgia). Might these Republican legislators try and overturn their state’s results by appointing Trump’s electors, rather than Biden’s?
Wisconsin state Rep. Joe Sanfelippo (R), has already endorsed this idea. “You either have to toss this election out and have a whole new election, or we have our delegates to the Electoral College vote for the person they think legitimately should have won,” he said this week. Sanfelippo is on the committee that Assembly Speaker Robin Vos (R) has told to investigate the election. (Though Vos himself said Tuesday he doesn’t expect the investigation to change the outcome in Wisconsin.)
Meanwhile, Pennsylvania’s Republican Senate majority leader, Jake Corman, has long claimed that the state legislature plays no role in selecting electors. But in recent days he has begun to hedge that statement somewhat, saying this would be the case “in normal circumstances.” (“Pressure has begun mounting on Corman and other GOP state leaders to reverse course and somehow overturn the results of the race,” Politico’s Holly Otterbein reported Tuesday.)
Yet in both Pennsylvania and Wisconsin, there is a process codified in state law for choosing electors, and it gives the legislature no part. (As Corman wrote just last month, “Pennsylvania law plainly says that the state’s electors are chosen only by the popular vote of the commonwealth’s voters.”) Furthermore, both states have Democratic governors, so the legislatures can’t pass a new law changing these rules after the fact.
But there may be one more catch. Supreme Court Justices Neil Gorsuch and Brett Kavanaugh recently embraced a legal theory that, in Gorsuch’s words, “state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules.”
If three other Supreme Court justices agree with this line of thinking, they could potentially grant partisan state legislatures far more leeway to do what they want with elections, without having to worry about governor's’ vetoes, secretaries of states, or elections boards. And if those partisan state legislatures want to appoint electors who will give Trump a second term — well, maybe the Supreme Court will let them do it.
Watch the certifications, the state legislatures, and the courts
To recap: A scenario for Trump overturning the election’s outcome is for Republican legislatures in multiple states to go around their governors and defy their state laws by appointing Trump’s electors rather than Biden’s, and for the conservative Supreme Court justices to then agree with the legislators.
It’s a far-fetched scenario. Biden appears to have secure leads in too many states for this to work out.
But it’s difficult to outright declare it won’t happen. Partisanship can be a powerful thing, and Trump is trying to make “the election was stolen” the standard Republican position. If Republican voters believe him, and demand their representatives take action, then it will become harder for state legislators to explain why they’re not doing anything about it.
So to get an idea of what may happen in the coming weeks, watch the state certifications, the state legislators, and the progress of the Trump campaign’s various lawsuits.
If the certification process and the elector appointment process remain on track, the rhetoric from Trump’s allies will be just that: empty rhetoric. But if we start to see certifications being delayed by the courts, or state legislators preparing serious efforts to appoint their own electors, then an attempt to steal the election from Biden could really be taking off.