Let's not get our hopes up too much on the possibility of knowing the name of the next president of the United States on the night between November 5 and 6 or, at the latest, the following day. The pessimists about the timing are thinking above all of the delaying work of the group of lawyers already hired by Donald Trump to contest the possible victory of Kamala Harris. But, beyond the tycoon's tactics, it is the Electoral procedures which in themselves lead to the hypothesis of delays in the diffusion of the final result of the race for the White House.
Waiting for the postal vote
I specific polls provide for a neck and neck, between Harris and Trump in the seven swing states (Arizona, North Carolina, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin), the swing states – those characterised by a fluid electorate and sudden changes in the majority between one election and the next – which will effectively decide the assignment of the White House.
The average calculated last Friday by the authoritative site www.270towin.com gave Trump a lead of 1,9% in Georgia, 1,8% in Arizona, 1,1% in North Carolina, 0,6% in Pennsylvania and 0,2% in Nevada, while it saw Harris leading by 1,6% in Michigan and 0,7% in Wisconsin.
All these percentages, in themselves very low, are lower than the margin of error of the polls themselves. Due to the expected minimal gap between the candidates, it is easy to assume that the counting of votes cast in person at the polls will not be decisive in itself and it will be necessary to wait for the counting of the votes sent by mail because these could end up making the difference.
The regulation on the timing of postal voting
This is where the problems begin. In five of the seven swing states, absentee ballots must be counted by the day the polls close for in-person voting in order to be considered valid. Michigan, however, allows an additional six days for ballots sent by military personnel or civilians temporarily abroad to arrive, while Nevada will accept ballots up to the fourth day after the polls close, regardless of who sent them, as long as they are postmarked by November 5 at the latest.
Additionally, five swing states give voters a few days to rectify any discrepancies between the signature on the envelope containing the anonymous ballot and the signature deposited at the county election office where they reside when they registered to vote: one week in Arizona, six days in Nevada, three days in Georgia and Michigan, and a time period at the discretion of individual election offices in North Carolina.
The problem of the vote recount
The small gap between the candidates could cause further delays in the communication of the results. The legislation of theArizona and Pennsylvania establishes a automatic recount of the ballots if the margin between the contenders is less than or equal to 0,5%. The same provides for the Michigan if the candidates are separated by less than 2.000 votes, but the defeated candidate can ask for a verification regardless of the size of his defeat. The electoral legislation of the Georgia and North Carolina does not provide for automatic mechanisms, but allows a second count upon request if the candidates are separated by less than 10.000 votes or 0,5% of the valid ballots. Wisconsin raises the verification requirement to a gap of no more than 1%. In Nevada a vote recount is permissible if the candidate bears the financial burden. To give an idea of the possible delay, the manual recount of the 2020 presidential election votes, decided by Georgia on November 11 because Joe Biden had received 49,47% and Donald Trump 49,24%, was completed on the 19th of the month.
The implications of indirect election
The election of the President of the United States is indirect. The vote on November 5 formally serves only to assign the electors of each state in the electoral college that chooses the president.
The electors are presented aggregated in blocked and opposing lists. Each is linked to one of the different candidates for the White House and contains a number of aspiring electors equal to those up for grabs in the state in which the vote is taking place.
The connection consists in the formal commitment of the members of the list to vote for a specific presidential candidate. It is no coincidence that citizens who go to the polls or vote by mail no longer find the different lists of the great electors indicated on the ballot paper, as had happened for much of the nineteenth century, but only the names of the presidential candidates to whom each list is linked.
Therefore, once the electors are cast on November 5, it should be clear who will become president, without having to wait for the Electoral College to officially nominate him.
The constraints on the vote of the great electors
This automatism, however, exists only on paper. The candidates for the office of great elector They are appointed by the parties from among their notables and officials to ensure their loyalty at the time of voting.
Furthermore, the majority of states have mechanisms that force their electors to vote for the presidential candidate they have pledged to support in the eyes of the citizens who have gone to the polls or sent in their ballots by mail. In some cases, the current rules require that the vote for the president be cast openly and lead to the removal and replacement of any “faithful” electors so that the responsibility they have assumed with the Americans is not breached. On the other hand, thirteen of the fifty states of the Union, including Georgia and Pennsylvania, do not provide for any measure of this kind and, therefore, do not have the tools to force their electors to remain faithful to their candidate.
When the Electors Prove to be “Unfaithful”
From the first election, which brought George Washington to the presidency in 1788, to the 2020 consultation, the electors have cast 23.507 votes. Only 90 times have they attributed it to a candidate other than the one to which they were bound and in no case has their "disloyalty" influenced the assignment of the White House.
However, the phenomenon of “infidelity” has intensified in recent years. In particular, in 2016 five Democratic electors “betrayed” Hillary Clinton and directed their vote not to her rival Trump, but to Bernie Sanders (the progressive senator from Vermont, with social democratic positions, defeated by the moderate Clinton in the primaries), Faith Spotted Eagle (a Native American activist who opposed the construction of the Keystone XL pipeline, which had instead been approved by President Barack Obama despite its devastating impact on the environment) and three times to Colin Powell (the former African-American Secretary of State for Republican George W. Bush, who in 2008 had supported Obama's candidacy).
One of Colorado's electors also voted for Sanders, but his preference was not counted because he was replaced according to the state's provisions. The "infidelity" towards Clinton was probably the manifestation of the protest of some electors who would have wanted a Democratic candidate less aligned with the strong powers, more environmentalist and the expression of an ethno-racial minority.
In the same 2016 vote, Trump was “betrayed” by two Texas electors who voted for the former hyper-liberal Republican congressman Ron Paul and for John Kasich, the governor of Ohio and the tycoon's last opponent to withdraw from the Republican primaries that year.
In this case, “disloyalty” towards Trump could be interpreted as a form of opposition to protectionism, on which The Donald intended to focus the trade policy of his possible administration, in contrast with the traditionally liberal orientation of the party.
Waiting for the Electoral College to pronounce
It cannot be ruled out that new forms of dissent against the official candidates of the two major parties will emerge again this year. For example, some Democratic electors could deny their vote to Harris to stigmatize the Biden-Harris administration's excessive alignment with the positions of Benjamin Netanyahu's government in the Middle East crisis and its inability to impose a ceasefire on Israel in Gaza.
Along these lines, although not a major elector but a simple voter, Amer Ghalib, the Democratic mayor of Hamtramck (Michigan) of Yemeni origin, has declared that he will vote for Trump.
Moreover, in the primary elections, when Biden was the only candidate vying for the party nomination, 13% of Michigan Democrats and 19% of Minnesota Democrats chose to send delegates to the national convention who had not pledged to support his confirmation for a second term to demonstrate their dissent towards his government's policy on Palestine.
Similarly, some dissatisfied Republican electors could “betray” Trump and vote for Nikki Haley, the former governor of South Carolina who, albeit briefly, offered the only valid alternative to The Donald during the Republican primaries. If, to use a horse racing expression, Trump or Harris win in the “short-face” electoral college, the about-face of a handful of electors could prove decisive in changing the outcome of the race for the White House and, therefore, it would be necessary to wait for the actual vote of the electoral college, on December 16, to know for sure the name of the president.
The possible challenge to the vote of the electors in Congress
As if that were not enough, the vote of the electors is not final. It must be certified by the governors of the respective states and can be contested by Congress. This has already happened on January 6, 2021. On that occasion, although without succeeding in the attempt to prevent the proclamation of Biden's victory, six senators and 121 Republican representatives supported a resolution to cancel the response of the electors of Arizona, while seven senators and 138 representatives of the same party asked that the vote of the electors of Pennsylvania not be certified.
To prevent similar attempts to overturn the election, in 2022 Congress raised the minimum threshold for filing motions to challenge the vote of the electors and question the legitimacy of their designation to 20 senators and 87 representatives, or 20% of the members of the Senate and the House.
Previously, the concurrence of just one senator and one representative was sufficient. The 2021 precedent raises concerns that it may be necessary to wait until January 6 of next year to be certain of who will sit in the Oval Office.
The hypothetical passage of the presidential election in the House of Representatives
Finally, there is one last scenario to consider. Due to the defection of some electors and the dispersion of their votes on protest figures, neither Harris nor Trump could obtain an absolute majority in the electoral college.
In this case, the choice of the president would pass to the House of Representatives, which would express itself after the counting of the votes of the electors on January 6, 2025. In this circumstance, the vote would not be by head but by state delegation. In other words, each state would have a single vote and the preferences of individual deputies would be counted only to establish the collective vote of each of the states they represent in the House.
Such an eventuality has occurred only twice in the history of the United States, in the distant 1801 and 1825. In the latter year, only one vote was needed to assign the White House to John Quincy Adams, but in the former it took thirty-five ballots, which took place between February 11 and 17, 1801, before Thomas Jefferson emerged victorious in the race for the presidency. For two centuries, this procedure was not used. However, in an electoral campaign that has reserved surprises repeatedly (from the double attack on Trump to the withdrawal of the Democratic candidate who had won the primaries), we must be prepared for every eventuality, even the most unexpected.
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Author: Stefano Luconi. He teaches History of the United States of America in the Department of Historical, Geographical and Ancient Sciences at the University of Padua. His publications include The “Indispensable Nation”. History of the United States from its origins to Trump (2020), US institutions from the drafting of the Constitution to Biden, 1787–2022 (2022) and The Black Soul of the United States. African Americans and the Difficult Path to Equality, 1619–2023 (2023).
Books
Stefano Luconi, The race for the White House 2024. The election of the president of the United States from the primaries to beyond the vote on November 5, goWare, 2023, pp. 162, 14,25 euros paperback edition, 6,99 euros Kindle edition. Stefano Luconi, US institutions from the drafting of the Constitution to Biden, 1787–2022, goWare, 2022, pp. 182, €12,35 paper edition, €6,99 Kindle edition
