Here’s What Will Happen Between Election Day and Inauguration Day

Here’s What Will Happen Between Election Day and Inauguration Day

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One possible — but, again, exceedingly unlikely — complication would be if a state legislature somehow managed to appoint a pro-Trump slate and defend it against legal challenges, but the governor certified a pro-Biden slate through the normal process, producing two competing sets of electors.

In that case, it would be up to Congress to decide which slate to count.

But “I don’t think any of this is likely to happen,” said Paul Smith, vice president of litigation and strategy at the Campaign Legal Center, a nonpartisan voting rights group. “Absent some really clear justification, like some massive dysfunction, it’s pretty hard for a legislature to say, ‘We’ve just decided we don’t like democracy anymore.’”

On Jan. 6, Congress will count and certify the electoral votes.

In any remotely normal year, state certifications — by Dec. 8 or, at the latest, Dec. 14 — would be the end of disputes, and everything after that would be formalities. In all likelihood, that will be the case this year, too.

But in the unlikely event that state legislatures and governors appointed competing slates, Congress would have to choose.

Something like this actually happened in 1960: The governor of Hawaii certified a 141-vote victory for Richard M. Nixon, but a recount flipped the state to John F. Kennedy, and the results weren’t final when the Electoral College met. The stakes were low — Hawaii’s electoral votes had no bearing on the outcome of the election, which Kennedy won — but Congress did have to resolve the dispute. Nixon himself, presiding over the Senate as the sitting vice president, called for unanimous consent to count the pro-Kennedy slate.

In the theoretical 2020 version of this scenario, Mr. Greenbaum said, federal law suggests that Congress should favor the governors’ slates.

But let’s say Congress stuck to partisanship, meaning the Democratic House chose a governor’s pro-Biden slate and the Republican Senate chose a legislature’s pro-Trump slate. Even in the case of a congressional stalemate, federal law dictates that the slate chosen by the “executive” of the state in question would prevail, according to David Boies, who was Al Gore’s chief lawyer in the 2000 Florida recount.

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