News organizations have called the presidential race for Joe Biden and he is now the president-elect of the United States. But Donald Trump refuses to concede. While a concession is not a legal requirement, it does create some uncertainty around what happens between now and the presidential inauguration on 20 January, when the constitution is clear the president’s term ends.
Here’s what you need to know about challenges to the vote totals over the next few weeks.
Media outlets have called Biden the winner based on their assessment of all of the counting and outstanding votes. They have made the assessment that Biden has a significant enough lead in enough states to get the 270 electoral college votes he needs to be president and that there’s no path forward for Trump.
The organizations that make these determinations, such as the Associated Press, rely on experts to make these projections and are often extremely cautious because they don’t want to get them wrong. Once a candidate is projected as the president-elect, it is highly unlikely the organization behind that projection would withdraw it.
As a matter of law, however, state results are not official until they go through a statewide certification process. Each state sets its own deadline for finishing that process. On 14 December, the electors chosen by their respective parties will all meet and cast their votes for president. The electors are chosen based on the certified winner of the popular vote.
It’s very unlikely.
Joe Biden holds a lead of tens of thousands of votes in key states where he needs the electoral college vote, and by about 4m in the overall popular vote. To overturn those margins, the Trump campaign would need to convince judges that those ballots had been cast illegally.
But election officials closely track mail-in ballots and the ballot counting process, and voter fraud is extremely rare in the US. It will be very hard for Trump to convince judges otherwise.
So far, Trump’s efforts do not look promising. The handful of lawsuits he has filed are legally shaky, experts say, and even if they had any merit, they would not be sufficient to overturn Biden’s leads. At least two of the suits have already been dismissed.
Recounts are a normal process in elections and many states have laws that specifically outline the process under which they occur. In Wisconsin, a candidate is entitled to a recount if the margin is less than 1 percentage point (Biden currently leads Trump there by about 0.7 points). In Georgia, a candidate can request a recount if the margin is less than 0.5% of votes cast (Biden currently leads by about 0.2 points). In Pennsylvania, there is an automatic statewide recount if the margin between the candidates is less than 0.5% of votes cast.
A recount doesn’t mean there was anything wrong with the initial count – it’s a way of checking the results in a close race. Recounts rarely change the results of a race.
Between 2000 and 2019, there were 5,778 statewide elections and 31 statewide recounts, according to FairVote, a voting reform group. Three of those recounts resulted in a reversal of the results. FairVote found that margin shifts are usually smaller in recounts with a high number of votes cast and presidential elections usually have the highest turnout.
Even Scott Walker, the former Republican governor of Wisconsin, has acknowledged Trump is unlikely to overcome Biden’s 20,000-vote lead in the state with a recount.
It’s true that the US supreme court is very conservative, but the justices are unlikely to determine the outcome of this election for a few reasons.
Much of Trump’s focus in challenging the election result has been focused on the fact that election officials are counting mail-in ballots after election day. But even though the ballots are tabulated after election day, all of them were cast on or before it.
Trump has offered little evidence of any, let alone widespread, ballots that were cast illegally.
There is currently only one pending case regarding the election in front of the US supreme court. It’s a dispute over whether Pennsylvania ballots that were postmarked by election day but arrive in the days after should be counted. Even though three justices on the court have suggested those ballots should be thrown out, it does not appear that there are enough of those late-arriving ballots to swing the election in Pennsylvania. Even if there were, legal experts have also voiced skepticism over whether the justices would reject the ballots because voters who cast those late-arriving ballots relied on instructions from government officials to believe they would be counted.
The US supreme court also wants to be seen as above politics and unlikely to get involved in an election where it would have to overturn the results in a number of states. In the 2000 election, the supreme court got involved in one state, Florida. But 2020 is dramatically different. Biden is projected to win a number of key swing states and the court is likely to be very hesitant to get involved. That sets a high bar for Trump and his lawyers: they have to show clear evidence of wrongdoing that would change the results in those places.
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