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What You Need to Know About the Electoral Process and What Happens Between Now and Inauguration Day

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  • Despite the numerous attempts by President Trump and his allies to undermine the outcome of the election, there is almost no chance he will still be in office after Jan. 20, 2021.
  • While there are still a number of things that need to happen before Inauguration Day, there are two general ways that Trump could try to steal the election, though both are highly unlikely.
  • The first is convincing the Republican-held legislatures in states that voted for Biden to claim the votes were incorrect, and send electors to the Electoral College who will vote for Trump.
  • The second scenario would be for electors who pledged to Biden to vote for Trump instead. While this is something that happens, it has never changed the outcome of an election.

The Long Path Ahead

Former Vice President Joe Biden has been declared the winner of the election, but for many, it still feels like there is a lot up in the air. 

President Donald Trump has refused to concede, and many in his administration are acting as though he’s been re-elected and will still be in office after the inauguration on Jan. 20. That’s also on top of the numerous lawsuits Trump has filed and the fact that he and his allies keep claiming, without evidence, there has been massive election fraud.

While there is still a lot that needs to happen between now and Inauguration Day, and the president’s undemocratic tactics are enough to make anyone uncertain, there is one thing that needs to be made very clear: it is extremely unlikely that he will be able to overturn the will of the people.

Let’s take a look at what will take place between now and the inauguration, and how the actions the president has taken fit into that timeline. 

Certifying Election Results

The very first thing that needs to happen is that states must certify their election results. The exact method for doing this varies from state to state, but the general way it works is that whichever local election officials are responsible for election administration first must count all the ballots, double-check totals, and make sure every valid vote has been included in those numbers.

Once that’s all one, those officials report their final totals to the state, and then the head election official — usually the secretary of state — compiles all the results from the local officials and gives them to the governor.

Notably, each state has its own deadline for this process, and some have already completed it, which makes sense because as you can imagine, this takes a lot longer in more populous places.

Then, once a state’s governor has all the totals from every county and municipality, they have to send them to Congress for what is known as a “certificate of ascertainment,” which lists the certified number of votes cast for each candidate as well as the names of the state’s electors.

As for the deadline for those certificates of ascertainment, they just need to be given to Congress before the Electoral College convenes on Dec. 14.

Safe Harbor Deadline

There is, however, a big incentive for states to give Congress those finalized counts before what is known as the safe harbor deadline on Dec. 8. This deadline is incredibly significant because it is the date by which all legal challenges and recounts must be settled and electors must be solidified by states.

For some context here, electors are the people who cast votes in the Electoral College. The number of electors in each state is equal to the number of electoral votes that state has. For example, Arizona has 11 electoral votes, and thus, 11 electors.

While the way electors are selected is different in each state. Generally, each party chooses a slate of electors at their state conventions or by a vote of a party’s central committee. 

When the voters in a given state cast their ballots for president, the party of whichever candidate wins the popular vote gets to designate electors who will go to Electoral College in December and vote for the person who won their state.

That’s why you often hear the phrase “winner-take-all” when it comes to the Electoral College. In all states, except Maine and Nebraska, whoever wins the most votes in a state gets all its electors.

However, if there are unresolved disputes over election results because of lawsuits, recounts, or other issues with certifying final counts and electors, then this whole process becomes a lot stickier. This is where hypothetical situations for how Trump could steal the election come into play.

There are two overarching ways that this could happen, though again, both are very unlikely.

Scenario 1: State Legislatures and Electors

The first scenario involves getting Republican-controlled legislatures in states that gave the popular vote to Biden to overrule that mandate. 

They can do this by claiming that the results are invalid and then invoking their constitutional right to step in and choose a slate of electors they believe more accurately reflects the election results of their state.

This would result in the legislature sending pro-Trump electors to the Electoral College to cast the state’s official vote for the candidate the voters of that state explicitly did not choose. Notably, the idea has floated by several conservative commentators, pro-Trump legislators, and, according to reports, even Trump himself privately among aides.

To be clear, what these people are proposing would be a full-blown attempt to steal the election and defying the will of voters by ignoring election results. As a result, any state legislature that would even consider doing that would face massive legal and practical hurdles.

Without getting too deep nitty-gritty of all of this, because the legal situation here is incredibly complex state to state, all you need to know is that Trump would have to get multiple Republican-held legislatures on board to do this in multiple key states in order to change the outcome of the election.

Currently, the president has only won 232 electoral votes to Biden’s 306, meaning he would have to get the legislatures in Michigan, Wisconsin, Pennsylvania, Arizona, and Georgia to all do this. Even then he would still be short one electoral vote.

So that is almost impossible in itself, and beyond that, even if Trump did get all those Republican legislatures on board, all of those states except Georgia have Democratic governors or secretaries of state that would not go along with that plot to steal their elections.

Even Georgia’s Republican secretary of state has pushed back against attempts from the right to undermine the election results and said outright there was no fraud.

Now notably, there is also a possibility — though also a far fetched one — that a state sends conflicting elector slates. This scenario would happen if the governor of a state that voted for Biden certified a Democratic elector slate, but then the state’s legislature appointed a competing pro-Trump elector slate that withstood legal challenges.

In that case, there would effectively be two slates, and Congress would have to decide which one to count. If the House and the Senate disagree, the governor’s slate would be the one counted.

Scenario 2: Faithless Electors 

The second possible way Trump could steal the election, which is even more of a longshot, centers around the concept of “faithless electors.”

Under the current political system, when a state’s party selects its electors, those electors pledge to vote faithfully to their party. Right now, more than 30 states and Washington, D.C. have laws that require electors to vote for their party’s winning candidate, and roughly 20 states also have laws that cancel the vote of faithless electors or penalize them for going against their pledge.

But in the states that do not have these regulations, an elector could technically cast one of their state’s full electoral votes for the candidate that did not win it. While this is something that does happen — there were seven faithless electors in 2016 — they have never changed the outcome of an election.

In the case with the state legislature’s electors scenario, experts say that given the wide margin of electoral votes Biden has over Trump, it is essentially impossible Trump could get enough faithless electors to sway the election.

Once the electors have cast their votes on Dec. 14, the newly-elected Congress will formally count and certify the votes on Jan. 6. This process is largely symbolic but members still are allowed to object to the vote counts from any state.

If one House member and one Senate member each give written objections, those votes will be debated and then voted on by each chamber, though both have to reject a state’s votes in order for them to be invalidated.

Again, highly unlikely, and in order for the date of the inauguration to be moved, it would require a lot of Constitutional heavy-lifting. So with all that said, it seems almost certain Joe Biden will be inaugurated on Jan. 20, 2021, and Donald Trump will no longer be president.

See what others are saying: (The New Times) (TIME) (The Associated Press)

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McConnell Says He Would Block a Biden SCOTUS Nominee in 2024

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The Senate Minority Leader also refused to say whether or not he would block a hypothetical nominee in 2023 if his party overtakes the chamber’s slim majority in the midterm elections.


McConnell Doubles Down 

During an interview with conservative commentator Hugh Hewitt on Monday, Senate Minority Leader Mitch McConnell (R-Ky.) threatened to block a hypothetical Supreme Court nominee from President Joe Biden in 2024 if Republicans took control of the Senate.

“I think in the middle of a presidential election, if you have a Senate of the opposite party of the president, you have to go back to the 1880s to find the last time a vacancy was filled,” he said. “So I think it’s highly unlikely. In fact, no, I don’t think either party if it controlled, if it were different from the president, would confirm a Supreme Court nominee in the middle of an election.” 

McConnell’s remarks do not come as a surprise as they are in line with his past refusal to consider former President Barack Obama’s nomination of Merrick Garland to the court in February 2016 on the grounds that it was too close to the presidential election.

The then-majority leader received a ton of backlash for his efforts, especially after he forced through Amy Coney Barrett’s confirmation just eight days before the 2020 election. At the time, McConnell argued the two situations were different because the Senate and the president were from the same party — a claim he reiterated in the interview.

McConnell also implied he may take that stance even further in comments to Hewitt, who asked if he would block the appointment of a Supreme Court justice if a seat were to be vacated at the end of 2023 about 18 months before the next inauguration — a precedent set by the appointment of Anthony Kennedy.

“Well, we’d have to wait and see what happens,” McConnell responded.

McConnell’s Calculus

Many Democrats immediately condemned McConnell’s remarks, including progressive leaders who renewed their calls to expand the court.

“Mitch McConnell is already foreshadowing that he’ll steal a 3rd Supreme Court seat if he gets the chance. He’s done it before, and he’ll do it again. We need to expand the Supreme Court,” said Sen. Ed Markey (D-Ma.).

Some also called on Justice Stephen Breyer, the oldest SCOTUS judge, to retire.

“If Breyer refuses to retire, he’s not making some noble statement about the judiciary. He is saying he wants Mitch McConnell to handpick his replacement,” said Robert Cruickshank, campaign director for Demand Progress.

Others, however, argued that the response McConnell’s remarks elicited was exactly what he was hoping to see and said his timing was calculated.

The minority leader’s comments come as the calls for Breyer to step down have recently grown while the current Supreme Court term draws near, a time when justices often will announce their retirement.

On Sunday, Rep. Alexandria Ocasio-Cortez (D-N.Y.) was asked if she thought Breyer should leave the bench while Democrats still controlled the Senate. She responded that she was “inclined to say yes.”

With his latest public statement, McConnell’s aims are twofold here: he hopes to broaden divisions in the Democratic Party between progressives and more traditional liberals, who are more hesitant to rush Breyer to retire or expand the court, while simultaneously working to unite a fractured Republican base and encourage them to turn out in the midterm elections.

See what others are saying: (The New York Times) (CNN) (The Hill)

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Gov. Abbott Says Texas Will Build Border Wall With Mexico

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The announcement follows months of growing tension between the Texas governor and President Biden over immigration policies.


Texas Border Wall 

Texas Gov. Greg Abbott (R) announced during a press conference Thursday that the state would build a border wall with Mexico, extending the signature campaign promise of former President Donald Trump.

Abbott provided very few details for the border wall plans, and it is unclear if he has the authority to build it.

While some of the land is state-owned, much of it belongs to the federal government or falls on private property.

Even if the state were able to build on federal ground, private landowners who fought the Trump administration’s attempts to take their land through eminent domain would still remain an obstacle for any renewed efforts.

During his term, Trump built over 450 miles of new wall, but most of it covered areas where deteriorating barriers already existed, and thus had previously been approved for the federal project.

The majority of the construction also took place in Arizona, meaning Abbott would have much ground to cover. It is also unclear how the governor plans to pay for the wall.

Trump had repeatedly said Mexico would fund the wall, but that promise remained unfulfilled, and the president instead redirected billions of taxpayer dollars from Defense Department reserves.

While Abbott did say he would announce more details about the wall next week, his plan was condemned as ill-planned by immigration activists, who also threatened legal challenges.

“There is no substantive plan,” said Edna Yang, the co-executive director of the Texas-based immigration legal aid and advocacy group American Gateways. “It’s not going to make any border community or county safer.”

Ongoing Feud

Abbott’s announcement comes amid escalating tensions between the governor and the administration of President Joe Biden.

Biden issued a proclamation that stopped border wall construction on his first day of office, and has since undone multiple Trump-era immigration policies. Abbott, for his part, has blamed Biden’s rollback of Trump’s rules for the influx of migrants at the border in recent months. 

Two weeks ago, the governor deployed over 1,000 National Guard members and troopers from the Texas Department of Public Safety to the border as part of an initiative launched in March to ramp up border security dubbed Operation Lone Star.

Last week, Abbott issued a disaster declaration which, among other measures, directed the Texas Health and Human Services Commission to strip the state licenses of all shelters that house migrant children and have contracts with the federal government.

The move, which federal officials have already threatened to take legal action against, could effectively force the 52 state-licensed shelters housing around 8,600 children to move the minors elsewhere.

During Thursday’s press conference, Abbott also outlined a variety of other border initiatives, including appropriating $1 billion for border security, creating a task force on border security, and increasing arrests for migrants who enter the country illegally.

“While securing the border is the federal government’s responsibility, Texas will not sit idly by as this crisis grows,” he said. “Our efforts will only be effective if we work together to secure the border, make criminal arrests, protect landowners, rid our communities of dangerous drugs and provide Texans with the support they need and deserve.”

See what others are saying: (The Texas Tribune) (The New York Times) (CNN)

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Biden Ends Infrastructure Talks With Republicans

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The president is now looking at other paths forward, including a plan being drafted by a bipartisan group of senators or the possibility of passing his proposal without Republican support.


Biden Looks to Bipartisan Group as Negotiations Collapse

After weeks of negotiations, President Joe Biden ended his efforts to reach an infrastructure deal with a group of Senate Republicans Tuesday.

Hopes for the centerpiece of Biden’s domestic agenda, however, are not dead. Lawmakers have already moved quickly to craft contingencies, outlining three main pathways for the next steps forward.

First, while an agreement between Biden and Republican senators is no longer an option, a joint deal is not off the table. Amid the ongoing negotiations, a bipartisan group of centrist senators have been quietly crafting an alternative plan in case the talks collapsed.

Currently, very few details of that plan are public, but the moderates have made it clear that their biggest division right now is the same sticking point that hung up Biden and the GOP group: how to fund the plan.

Negotiations on that front could prove very difficult, but they could also yield more votes. As a result, Biden indicated this path is his first choice, calling three members of the group Tuesday evening to cheer on their efforts.

Even if the group can come up with a deal that appeases Biden, the possibility still exists that not enough members would embrace it. In addition to funding questions, there are still disputes between Democrats and Republicans in regards to what constitutes “infrastructure.”

The president wants to expand the definition to more broad, economic terms. Republicans, however, have repeatedly rejected that, instead opting for more traditional conceptions of infrastructure.

As a result, while GOP lawmakers are worried that any proposal from the moderates would be too expansive, Democrats are concern that key provisions would be cut.

Other Alternatives

If a joint agreement cannot be reached, Biden’s second option for his infrastructure plan would be to forge ahead to pass a deal with just Democratic support in the Senate through budget reconciliation, the same procedure used to get the stimulus bill through.

Biden, for his part, does appear to at least be considering this option. In addition to calling the bipartisan group moderates Tuesday evening, he also spoke to Senate Majority Chuck Schumer (D-N.Y.) about drafting a new budget outline Democrats could use for the reconciliation process.

That path, however, also faces hurdles. In order for Democrats to even approve legislation through this process, they need all 50 members to vote in favor — something that is not guaranteed, given that some moderate senators have voiced their opposition to passing bills without bipartisan support.

While Schumer did say that he would still start work on a reconciliation package, he also outlined the third possible option: two separate bills.

“It may well be part of the bill that’ll pass will be bipartisan, and part of it will be through reconciliation,” he said Tuesday. “But we’re not going to sacrifice the bigness and boldness in this bill.”

See what others are saying: (The Washington Post) (The New York Times) (NBC News)

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