On Nov. 7, the U.S. news media projected Democratic candidate Joe Biden the winner of 2020 presidential race. U.S. President Donald Trump, however, did not accept that outcome and accelerated an attack on the integrity of vote counting in key battleground states.
Trump’s lack of a concession raised questions among Americans over the next steps of the election process, which runs on federal statutes, state laws, and constitutionally mandated procedures under healthy conditions. No U.S. presidential candidate in modern history has refused to concede defeat once all legal challenges were resolved and votes tallied.
Following the historic announcement Nov. 7, the Trump campaign released the following statement:
The simple fact is this election is far from over. Joe Biden has not been certified as the winner of any states, let alone any of the highly contested states headed for mandatory recounts, or states where our campaign has valid and legitimate legal challenges that could determine the ultimate victor.
Below, we explain the status of the 2020 presidential election, as well as laws governing procedures before the next presidential term officially begins.
What Exactly Was Announced Nov. 7?
Before we address concessions, it’s important for us to explain the democratic process under Constitutional mandates and federal law.
When Americans cast ballots in presidential elections, participating in the country’s popular vote, they are actually voting for a group of people in their state to formally choose the president through the Electoral College.
Each state and the District of Columbia have two such designees, plus a varying amount based on their number of seats in the U.S. House of Representatives. In total, there are 538 electors:
In other words, when county and states count ballots for president, they’re deciding for which presidential candidate their electors will vote — culminating in an intense focus on battleground states with a sizable number of electors and diverse politics.
That said, the news media project winner in a presidential race when a candidate secures a majority of the nation’s electoral votes: 270. Journalists make that call by looking at states’ Secretary of States’ websites, where poll workers publish official vote tallies under state and federal regulations.
That announcement can take days, as statistics experts compare the number of votes counted to the difference in totals between the losing and winning candidate.
As in the case of the Biden-Trump election, ballot counting was especially drawn out because of the surge in mail-in voting due to the COVID-19 pandemic and states’ varying rules and deadlines for counting those ballots. Biden was announced the winner on Nov. 7, as shown in the tweet by The Associated Press below.
JOE BIDEN DEFEATS PRESIDENT DONALD TRUMP
The Associated Press declares Joe Biden the winner of a grueling campaign for the American presidency. He will lead a polarized nation through a historic collision of health, economic and social crises. #APracecall pic.twitter.com/lInwqjX3PB
— The Associated Press (@AP) November 7, 2020
What About Lawsuits Over Votes?
The Trump campaign is relying on lawsuits to challenge its narrow losses in several key battleground states. It is the first presidential campaign to contest voter returns with litigation since the 2000 race between George Bush and Al Gore.
Almost immediately after polls closed, the Trump campaign filed several lawsuits over alleged discrepancies in widely publicized tallies in the popular vote. The lawsuits were part of Trump’s aggressive messaging strategy to try to convince people into believing widespread, or even sporadic, fraud had corrupted the ballot counting.
The Nov. 7 statement from the Trump campaign read:
Beginning Monday, our campaign will start prosecuting our case in court to ensure election laws are fully upheld and the rightful winner is seated.
In other words, the Trump campaign is relying on the outcomes of court cases to set aside votes to prevent Biden from assuming the White House — and, as a result, some states would have to hold off on certifying their voter tallies as those legal battles play out.
But, per legal experts’ analysis, most of the lawsuits were small-scale legal challenges that did not appear to impact many votes, according to The Associated Press, which provided the following analysis:
Bush v. Gore in 2000 was a good example of how litigation can affect the outcome of an election. But legal experts say today, a lawsuit with that kind of power would have to come out of a state where the result there would determine who wins the overall election. Also, the difference between the candidates’ vote totals would have to be smaller than the ballots at stake in the lawsuit. And neither condition has been met yet.
Put another way, a lawsuit would impact the outcome of the presidential election if it was filed in a state that would determine the end result of the popular vote, and the margin of difference between votes for Biden and Trump in that state were smaller than what’s currently outlined in pending litigation.
Judges quickly dismissed Trump campaign lawsuits in Michigan and Georgia, though the Trump campaign could appeal those decisions. Likewise, the campaign won an appellate ruling to get party and campaign observers closer to election workers who were processing votes in Pennsylvania.
Do Losing Candidates Have To Concede?
Nope. No constitutional mandate or federal law requires losing presidential candidates to publicly acknowledge defeat by conceding to their opponent or addressing the nation for the presidential transition to start.
Additionally, the process for certifying elections results continues, regardless of candidates’ public or private statements.
Over the decades, concession speeches have come to be an informal part of the U.S. election process that symbolizes the losing candidates’ willingness to aid in a peaceful transition of power. The remarks often signal to supporters of the losing candidate how to accept the elections results.
Ryan Neville-Shepard, a University of Arkansas professor who specializes in political communication, wrote in the Washington Post in 2018 that:
Ever since Democrat William Jennings Bryant sent a telegram to William McKinley to end the 1896 presidential election, candidates running in national races have tended to follow the same pattern of officially ending the campaign. A private concession is followed by an official phone call, followed by a longer speech addressing a national audience … Since most candidates recognize the importance of these norms, they usually make some statement that declares defeat while calling for unity behind the victor.
No evidence showed Trump was preparing to publicly acknowledge a loss as of this writing, while an MSNBC journalist tweeted:
Biden’s team has asserted it would “escort” Trump and his allies out of the White House, should Trump refuse to leave when, or if, the law says he’s no longer president on Inauguration Day on Jan. 20, 2021.
“The American people will decide this election. And the United States government is perfectly capable of escorting trespassers out of the White House,” campaign spokesperson Andrew Bates said in a statement to media.
Below, we outline the steps of the elections process after the popular vote shows a winner, no matter if a losing candidate concedes.
What Happens After Media Declare a Winner?
With a concession or not from the losing candidate, state officials at polling sites nationwide continue to count remaining ballots over the course of days or weeks according to their respective rules.
In other words, whether a ballot is counted on election night or in the days afterwards, once it is cast and counted in accordance with the law, it must be counted.
Then, state executive authorities certify the elections results and governors prepare a “Certificate of Ascertainment” that lists the names of the state’s chosen electors.
That would mean if Trump won the popular vote in Arizona, for example, (which had not happened as of this report) that state’s slate of Republican electors would appear on the certificate and cast the official vote for president. Likewise, if Arizona’s ballot results went in Biden’s favor, the certificate would list a separate group of people — electors who pledged to vote for the Democratic presidential candidate — would send their vote for president to Washington, D.C.
What Is The Electoral College?
The Constitution offers very few provisions governing the qualifications of electors and what rules they must follow.
As a result, states have established their own rules for picking electors, and the two major political parties — Republicans and Democrats — often choose their slate at conventions or via a vote of the party’s central committee. Per the National Archives, an independent agency of the U.S. government that oversees historical records and documents:
Political parties often choose individuals for the slate to recognize their service and dedication to that political party. They may be State elected officials, State party leaders, or people in the State who have a personal or political affiliation with their party’s Presidential candidate. (For specific information about how slates of potential electors are chosen, contact the political parties in each State.)
It was within the process of choosing electors or sending their votes to Washington, D.C., that elections experts were preparing for the Trump campaign or Republican supporters to intervene, should he continue to contest the results of the country’s widely publicized popular vote.
Read here for how Congress would decide the outcome of the 2020 election, pending what happens with the Electoral College.
Can Electors Defy the Popular Vote?
Yes, it’s possible — though a rare occurrence throughout history.
Neither the Constitution, nor federal law, requires electors to vote according to the results of the popular vote.
On rare occasions throughout American history, electors have gone against their pledge to their party and voted for someone other than its chosen candidate. Political scientists call them “faithless electors,” and their motivations to change political allegiances vary. Russell Wheeler of the Brookings Institution wrote of the phenomenon:
Faithless electors have never changed an election outcome. But in this chaotic election year, their potential to disrupt the presidential election may loom larger. As a further twist, state legislatures in battleground states might try to replace state-certified electors with alternative slates of faithless-elector equivalents. […]
So to “constrain” electors’ behavior, as Wheeler put it, states have established laws for governing electors’ actions.
In addition to the District of Columbia, 33 states, for example, require electors to vote for whichever candidate won the popular vote, according to FairVote, a nonpartisan voter-rights advocacy organization. However, the majority of those laws (in 16 states plus Washington, D.C.) do not create penalties or any mechanism to stop electors from going against their pledges.
Meanwhile, five states do lay out punishments for faithless electors, and some states’ laws allow for the party designees to be replaced with someone new.
What Happens Next?
Parties must officially designate their state’s electors for the “Certificate of Ascertainment” by early December, per Wheeler’s analysis.
After that, the groups meet in their respective state capitals to cast official votes for president. By that point, as Wheeler wrote, each state has presumably replaced faithless electors or accepted that they will go against their pledge.
In the end, after electors cast official votes, state officials send those results to the president of the Senate, who, in 2020, was Vice President Mike Pence. Then, on Jan. 6, the electoral votes will be counted and certified in front of the newly convened Senate and House of Representatives.
Lastly, on Inauguration Day on Jan. 20, the vice-president-elect and president-elect will take an Oath of Office at the U.S. Capitol. After that, they will officially lead the 46th presidential administration of the United States.