Hold on Tight: It Could Be a Wild Ride
When I write my next edition of Presidential Elections and Other Cool Facts, I'm going to add a new chapter on "When Must All the Votes be Counted." Because this election year, that's certainly the question I get asked most often.
So here goes a shot at explaining the basic Constitutional and statutory requirements, with allowance for some of the permutations this wild election might cause.
Bottom line is there’s no Constitutional or legal reason why all of the votes must be counted on Election Day or shortly thereafter. But that doesn’t mean the vote count can go on indefinitely -- there are some deadlines that must be met.
The first deadline under federal election law is the first Monday after the second Wednesday in December, which this year is Dec. 14. That’s the date the members of the Electoral College must meet in each state and cast their votes for president and vice president. That date isn’t in the Constitution; it was set by Congress, and presumably Congress can change it. So it’s kind of a soft deadline. The next deadline is the fourth Wednesday in December, which this year is Dec. 23. That’s the date by which the states must send their electoral votes to Congress. Again, Congress has set that date by statute, so Congress can change it.
Now let's stop here and consider some questions. What if the votes in some states haven't been counted or are being challenged in court? What, for example, if some states vote on Dec. 15, or 16, or 17, and not on the 14th as required by law? Are those votes valid? Beats me, but you can bet that such votes would be challenged in court. Same thing if one or more states don't get their votes to Congress by Dec. 23. That will no doubt go to court.
The next key date is Jan. 6. That’s the date Congress counts the electoral votes in joint session. Again, that's a statutory date, not in the Constitution. So it could be changed. But what if no candidate has received a majority of the electoral votes? Let’s say, for example, several states haven’t finished counting their popular votes or the votes are still being challenged in court, so those states haven’t sent their electoral votes to Congress yet, and the winner of the electoral vote falls short of the 270 votes required by the Constitution to become president? In that case, according to the 12th amendment of the Constitution, Congress picks the president and vice president under what's called a contingent election, and the House would vote for president and the Senate would vote for vice president. But there are two wrinkles. (Of course there are, you didn't expect otherwise, did you?)
One is that it’s not the current Congress that does the voting, but the new Congress that is being elected this year and which takes office, according to the Constitution, on Jan. 3. But what if all of the votes aren’t counted by Jan. 3? What if only some, but not all of the members of the new Congress are seated by Jan. 3. Can such a Congress still conduct a contingent election? Again, beats me, but I'm sure that question will be taken to court.
The second wrinkle is that instead of voting individually, the members of each state’s delegation vote together, and the winner of the vote in each state will get that state’s one vote. So even though there are currently more Democrats in the House, there are more Republican-controlled state delegations, and if that continues into the next Congress, it’s conceivable that the House could select Donald Trump as president, even if Joe Biden gets more electoral votes than Trump but does not get 270. And it's also possible, depending on what happens in the congressional election, that the House could select a president of one party, and the Senate could select a vice president of another party, and that hasn't happened since the second president, John Adams, had his political opponent, Thomas Jefferson, as his vice president. (I will give you all a moment to contemplate the next four years with Donald Trump as president and Kamala Harris as vice president.)
Finally, the most important date is Jan. 20, Inauguration Day, the day that the Constitution sets for the current president to leave office and new one to take over as of noon that day. The only way that date could be changed is by a Constitutional amendment, a process that could take years.
But there's a contingency. If no new president has been elected and there’s a vacancy in the office on Inauguration Day, then the presidential succession statues kick in and an interim president would take office. And since there might not be a vice president either, according to the succession statute the next person in line who would serve as interim president is the Speaker of the House, who currently is Nancy Pelosi. It's going to be a wild ride . . . .