Certifying the Vote and More Potential Disputes

The lawsuits the Trump campaign has initiated will likely continue until at least December 14, the date on which all states' electors meet and then forward their decision to Congress. The new Congress, seated January 3, then does the final certification, with the vote scheduled for January 6. If the vote is not certified at the state level, a possibility given the current wrangling, then it is possible that no candidate will get its Electoral College votes, or the state could send two slates of electors to Congress, one for Trump and one for Biden. In either case, the House of Representatives would have to decide the outcome of the election, with each state getting only one vote. The possibility that states with a majority of Republicans could vote in Trump's favour is only further intensifying conflicts among the rulers.

One of Trump's lawsuits in Pennsylvania could go to the Supreme Court. At least one Justice, Justice Alito, has indicated that he thinks it was unconstitutional for Pennsylvania to extend the date for receiving mail-in ballots. His likely argument is that the decision was not made by the state legislature but rather by Pennsylvania's Secretary of State. If the Supreme Court intervenes and rules in Trump's favour, it could also call into question the vote count in other states that acted in a similar manner -- for example, Wisconsin and Michigan -- calling those Electoral College votes into question.

Such an outcome would also depend on whether the number of ballots received after Election Day in the states involved would be sufficient for Trump to win those states. Efforts to outright block certification are in part intended to overcome such a calculation. It also remains unclear if the Supreme Court will even hear one or more of these cases and what requirements in terms of counting or discounting the votes they might impose. All of this only further underscores that the existing institutions no longer function to sort out conflicts or give the appearance of a legitimate election.

The process for certifying the vote varies from state to state, with different deadlines in each. For states in dispute, the deadlines are: Nevada, November 16; Georgia, November 20; Michigan and Pennsylvania, November 23; Arizona, November 30; and Wisconsin, December 1. Other states have deadlines in November and seven have dates in December, with the last, California, December 11.

The states have election laws in place for the certification process before the election begins. It is not the state legislatures that certify the vote but the state election boards. These boards are usually made up of an equal number of Democrats and Republicans, often appointed by the Governor and excluding any other parties. The state boards get information from all the county boards, which they review and then certify the vote. Once the vote is certified, whoever receives a plurality of votes will have their slate of electors seated when electors meet December 14. 

Michigan, for example, has a four-member Board of State Canvassers that must have a vote of 3-1 to certify. In the case of a 2-2 tie, it goes to State Courts, which would likely, but not necessarily, order the Board to certify the vote. If the Court does not order the Board to certify the vote, the state legislature might intervene, or dual slates of electors would be used. Thus, in the case of Michigan, it is the courts and a handful of people, not the electorate, who could decide the outcome.

It is worth noting that in all the talk about counting votes, the large majority of states -- which make up the majority of the population and have millions of discounted and suppressed votes -- are not even in the picture, let alone discussed. Elections in the U.S. are not designed to unify the people and involve them in debate as to how to move society forward. On the contrary, they ensure that the concerns and interests of the people and solutions to the problems they face, such as for health care, education, war and peace, and elections, are excluded altogether.

November 7, 2020. In Louisville, Kentucky, a march honours Breonna Taylor and moves her memorial to a more permanent location.

(Photos: I. McCullough)

This article was published in

Volume 50 Number 44 - November 14, 2020

Article Link:
Certifying the Vote and More Potential Disputes


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