Merry Covid Christmas and a Happy New Executive Branch
By: Ariadne Schulz
Tags: Timeline, Inauguration, Law, President, Election 2020

Trump is currently losing his mind somehow simultaneously in slow motion and in fast-forward. I’m honestly not sure how that’s done, but I also feel like that’s an accurate description of what’s happening. And as a result I’m getting sort of inundated in multiple groups with people linking terrifying articles they found whilst doomscrolling. For instance yesterday there was an article in WaPo entitled, “Trump asks Pennsylvania House speaker for help overturning election results, personally intervening in a third state,” followed swiftly by, “Supreme Court denies Trump allies’ bid to overturn Pennsylvania election results.”

I do understand how this whiplash causes a lot of anxiety for people, but a.) it need not because as I’ll explain in the rest of this article Trump and his team cannot overturn an election and b.) I really wish you all would reserve your anxiety for things that make considerably less sense not because that’s healthy, but because it echoes my own anxiety and it is at least entertaining.

Before I get into a timeline of election related events I want to point out that contrary to what a lot of media outlets and randoms online have been saying, a state legislature CANNOT appoint a slate of electors after a vote has been held. To explain, the state legislatures do get to choose and control how elections are held. So at any time they can actually choose to change that, but once an election is underway they cannot change how the election is conducted. They can pass legislation right now saying that they’ll only ever send Republican electors, but because the general election has already concluded and at the time of the general election the law was that electors would be appointed based on the general vote, they still have to abide by that previous legislation. The imagined law where they only ever send Republican electors would apply to 2024 assuming it was never overturned between now and then, but not 2020.

But okay, so let’s timeline.

November 3: Election day. This is the last day people could cast votes in person and send their ballot in. In several states ballots had to be received by November 3rd, but in others mail-in ballots were accepted through November 20th provided they were postmarked November 3rd. This varies by states because according to the US Constitution, states have the right to conduct their own elections.

November 3 through December 8: Counting and certification. States technically have a bit longer than this to count and certify their votes, but most state deadlines for certification of the vote fall on or before December 8. Certification means that the state officials verify the final tallies for the vote and provide the names of the electors who will be participating in the Electoral College vote. Usually this requires the governor’s signature and the seal of the state.

December 8*: Safe Harbor. Essentially this is the due date by which all contestations to the vote must be resolved. The governors all have to send in a report to the Archivist of the United States detailing what happened in their states if the results were contested, but after December 8, whatever the result of those states elections is certified to be is what stands. As of writing this deadline has passed so while I doubt that this will be the end to Trump’s attempted mussing, he cannot really legally muss. (Six duplicates of the Certificate of Ascertainment are provided to the members of the Electoral College meeting in each state.)

December 14*: The Electoral College Votes. The members of the Electoral College chosen to vote in this cycle will meet at a location within their state determined by their state legislature and cast votes by paper ballot one for President and one for Vice President. Based on their vote they will then create the Certificates of the Vote with the tallies for both President and Vice President and signatures from each of the electors. They pair the Certificates of the Vote with the Certificates of Ascertainment and send one to the sitting Vice President in his capacity as President of the Senate, two to their state’s Secretary of State or equivalent, two to the Archivist, and one to the relevant US district court.

December 23: Deadline for receipt of the Certificates of the Vote. This is why there are multiple copies of the vote and ascertainment sent to different places. If the President of the Senate or Archivist have not received the Certificates of the Vote and Certificates of Ascertainment by this date they will require a copy sent by registered mail and ask the judge of the relevant US district court to deliver their copy by hand. (In case you’re wondering, this is from 3 U.S.C. §12, 13 which was written in the mid 20th century. We’re not talking about a horse and buggy situation here.)

January 3: 117th United States Congress sworn into office. Those elected in 2020 will be sworn in at noon on January 3rd. This includes the entirety of the House of Representatives and Class II of the Senate but this cycle will exclude the two Senators from Georgia who — due to the special election resultant from the electoral laws in that state — will be sworn in later. Vice President Pence remains President of the Senate until January 20th. Shortly after being sworn in the House of Representatives will elect the Speaker of the House who, due to the Democrats maintaining their majority, will almost certainly be Nancy Pelosi.

January 5: Georgia holds its special election for both Senatorial seats. The deadline to register was December 7th, but registered voters in Georgia can request their ballot up to January 5th. All ballots must be postmarked by January 5th and received by January 8th.

I have no idea how this will go. At present, the incumbents are Kelly Loeffler (R) who was appointed to her seat by current Georgia Governor Brian Kemp (R) and David Perdue (R). They are being challenged by Raphael Warnock (D) and Jon Ossoff (D) respectively. If either Republican wins their race the Senate majority will be Republican, but if both Democrats win then the Democratic Party will hold a majority based on Kamala Harris’ tie breaking vote as President of the Senate starting at noon on January 20th.

January 6: Joint Session of Congress to tally Electoral College Votes. If you read me regularly, you’ve seen me link 3 U.S. Code § 15 before. And that’s because this is kind of a pain to summarize. But to do just that: both the Senate and the House of Representatives will meet together at 1pm on January 6 to open the aforementioned Certificates of the Vote and thereby tally all the Electoral College votes. They should, quickly thereafter, announce the results. Whoever (Joe Biden) receives 270 Electoral College votes is President.

However, there is a means for objections to any given state’s vote to be contested provided said objection is submitted in writing by both a member of the Senate and House of Representatives. When submitted if it meets the criteria the Senate and House adjourn to their respective chambers for up to two hours to debate and vote whether or not to accept or reject the objection. If both houses do accept then those contested votes must be excluded. There is a whole special set of rules for how all this is enacted and how it’s meant to get done and I do expect this joint session will drag, but as the House is controlled by the Democrats there is only so much foot dragging the Republicans can do to overturn the election even if they’re still of a mind to do so.

January 20: Presidential and Vice Presidential inauguration. The Vice President is the first, traditionally, to be sworn in so Kamala Harris will take her oath of office just before noon on January 20th. Once she’s finished at noon Joe Biden will take his and — presumably — deliver his inaugural address. Traditionally this will all take place on the West Front of the Capitol, but given the pandemic it is possible that the crowds may be a bit smaller or that the inauguration will be held elsewhere. There seems to be construction of a stage in that area though so it will probably be held there.

While much of this is based on tradition, the previous Presidential term of office (Trump’s, sort of) will end at noon on January 20th. That is not just a matter of law but described in the 20th Amendment of the US Constitution. Joe Biden must take his oath of office and he is President after noon on January 20th and he’s taken the oath. If he fails to take the oath Kamala Harris is President until he manages it. If she somehow also fails or for whatever reason they cannot be inaugurated on the 20th at noon then Nancy Pelosi becomes President. Under no circumstances will either Trump, or Pence or any other member of their administration become President.

And In Conclusion

I appreciate that all of us are white knuckling it to the end. We had a fascist intermezzo and as a result people who otherwise would still be with us died. We are going to be repairing the damage of the Trump Presidency domestically and internationally for years to come. It’s been a truly awful punctuation to a lot of the less savoury elements of our culture and society and it has been truly shocking finding out how willingly a lot of Americans will plunge into the authoritarian mindset. It’s also notable that this happened in spite of us electing the perfectly capable and really overqualified Hillary Clinton in 2016. So, I do get why people are still experiencing residual anxiety and I do encourage public oversight of government.

But, as scary and deeply awful and revealing as all this has been there is no legal, practical, or realistic means for Trump to hold onto power. The best he can possibly do is stage a revolution and even for that he does not have the support. There are crazies out there and some of them are violent and I do think they’ll try to do crazy violent things before this is done, but they are not in a position to overthrow the government. Trump has exhausted all his legal options. He can attempt illegal ones, but it just means more charges he can’t pardon and a longer prison sentence.

I wrote this so you can have a quick reference over the next month and change to where we are in the process. Have a deep breath. You have plenty to worry about besides this, but you can be assured that this at least is sorted.