We have reached the conclusion of our cycle of seven interviews with Professor Stefano Luconi, professor of History and institutions of the Americas at the University of Padua and author with goWare of a guide book to the next American presidential elections. On this occasion we will talk about the mechanism of the transfer of power that is activated in the approximately two months that separate the presidential elections from the official inauguration of the President and the Vice President.
One wonders what could happen in particular in this period, given that already on the night of November 5th or the morning of the 6th we already know who the President and Vice President will be. In reality, the transfer of power from one administration to another is a delicate and crucial moment in every completed democracy and ends up defining its maturity.
The transfer of power can be a purely formal act that follows an institutional path outlined by the Constitution, as has generally happened in American history, but also a turbulent and tense period as has been seen twice in the last 25 years.
The first act after the elections is the recognition of the result of the polls by the defeated candidate. In the 2000 elections, Al Gore acknowledged defeat only after, on December 12, 2000, the United States Supreme Court, with a ruling of 5 to 4, blocked the recount of the votes in Florida, requested by the State Supreme Court, and awarded definitively the Presidency to George W. Bush.
Twenty years later, Donald Trump has never acknowledged defeat in the elections of November 3, 2020. It was a position that not only underlies the serious and unprecedented events of January 6, 2021 in Congress, but ended up putting one of the pillars of the democratic system is under discussion, also inspiring similar acts in democracies more fragile than the American one, such as Brazil.
With Professor Luconi we will now go into the details of this delicate phase of transfer of power from one administration to another which is not always of the same political colour.
Professor, the elections don't end on the night of November 5th or in the early morning of the 6th, right?
In fact, the indirect election procedure of the president does not end with the choice of the electors on the first Tuesday after the first Monday of November. After their election, the electors gather in the capitals of their respective states on the Monday after the second Wednesday of December, vote for the president and send their ballots to Congress in Washington.
Why not all together in Washington?
The Constitution prevents voters from gathering in a single location to reduce the possibility that they will be subject to external pressures and threats that influence their vote. The constituents feared in particular that this place could be surrounded by crowds of commoners who tried to impose their own candidate.
Should we then wait for the December vote to start working?
We don't have to wait for the December vote. The moment an "apparent winner" emerges, in that there is a candidate who has won over the majority of electors based on the results of the polls in November, if he is not the president in office, the "transition" begins. that is, the transition from the administration in power to the one that will take over.
What can this “apparent winner” do? I imagine it is a definition, let's say official, that is, provided for by law.
The law assigns to the "apparent winner" structures and funds to facilitate this change at the top of the institutions. The most relevant aspect is the choice of the main officials, in particular the heads of the ministries who, once designated, require ratification by the Senate before taking office.
How long does the “transition” last?
The “transition” ends with the start of the president's term on January 20 following election day. Until that moment, the outgoing president retains full powers, although he usually consults his successor on decisions that will also affect the incoming administration.
And has it always happened that this collaboration occurred without major friction?
In fact, collaboration has not always manifested itself. The most recent example was the “transition” from Trump to Biden. Previously, after the 1932 presidential elections there was no cooperation between the outgoing Republican, Herbert Hoover, and the incoming Democrat, Franklin D. Roosevelt who had defeated him. The serious worsening of the economic crisis that had gripped the country since 1929 was attributed to the lack of political consultation between the two during the "transition" period. To reduce the negative effects of a prolonged "transition" without dialogue in the handover, it was therefore established that from the following elections the president would no longer take office on March 4, as had happened until then, but on January 20, as still happens today.
Are the electors sovereign in voting for the choice of president? Is there a mandate constraint?
The federal Constitution is silent on how the electors should express themselves and, therefore, suggests that they are sovereign in choosing the presidential candidate. This means that, in theory, they can also vote for a candidate other than the one connected to the list with which they were elected.
Has such a situation ever occurred?
Such an eventuality has occurred very rarely and has never determined the outcome of presidential elections. In more than two centuries, between 1789 and 2020, just 165 episodes of this kind have been recorded overall, 90 for the choice of president and 75 for that of vice president, out of a total of over 21.000 votes cast by electors.
Was there any case that led to the scuttling of a candidacy?
The only case of about-face that influenced the final result occurred way back in 1796 and concerned the vice presidency. At the time, the vote for vice president was not yet separate from that for president. The "betrayal" of some electors brought the Democratic-Republican Thomas Jefferson to this office instead of the federalist Thomas Pinckney, the candidate of the party that had obtained the majority of electoral votes and won the presidency with John Adams.
Isn't there a law that prevents a major voter from carrying out a similar turnaround?
To prevent these forms of "disloyalty", over time 33 states out of 50 and the District of Columbia have enacted regulations to integrate the Constitution and oblige their electors to vote for the candidate to whom they are connected, forcing them to express a vote overt, rather than secret.
Is it a binding rule?
Only 14 states provide mechanisms to apply this provision in a coercive and concrete manner through the replacement of electors who do not respect the commitment made to the citizens and the annulment of their votes. Two of these 14 states also provide heavy fines for "unfaithful" electors.
Are these measures constitutional?
Yes. In 2020 the Supreme Court established the legitimacy of these measures, albeit with the clarification that it is a prerogative of the States and not an obligation. In any case, the absence of mandate constraints for electors, which is still permitted in 17 states, may trigger negotiations to induce them to change candidates before the vote in December.
Do the voters have the last word on elections?
In theory no. Not even the vote of the electors is definitive. In fact, the legitimacy of their election and the regularity of their votes must be certified by Congress on the following January 6th. Both can be contested. There are precedents in this regard, even without reaching the subversive degeneration of January 6, 2021 with the assault on the Capitol by Trump supporters.
For example?
For example, in 1876 the Democratic Party accused the Republican Party of having committed fraud in Florida, Louisiana and South Carolina and blocked the proclamation of the new president until an agreement was reached to recognize the victory of the Republican Rutherford Hayes.
How do you establish the illegitimacy of the mandate of one or more electors and, therefore, not count their vote?
This act requires a majority of senators and representatives, upon the proposal of at least one member of each branch of Congress. If the Senate and the House disagree in evaluating the position of a voter, his vote is considered admissible and is therefore counted. For this procedure to be activated, the concurrence of at least one member of both houses of Congress is required. In other words, it is necessary for a deputy and a senator to jointly contest the election of a major voter.
We come to the official proclamation of the President. How does it happen?
Once the credentials of the electors and the counting of their votes have been completed, the vice president in office, who presides over the Senate, officially proclaims the election of the occupant of the White House. The settlement, however, took place only two weeks later, on January 20th.
One more latency. What can happen in this period of time?
For example, if the president-elect dies, renounces his mandate or contracts illnesses that prevent him from carrying out his duties, neither Americans nor voters return to vote. However, the Presidential Succession Act, a measure that traces the succession to the president, is applied.
A succession? Doesn't it happen like in the famous HBO TV series?
No, the law establishes a sequence of positions to automatically and preventively establish who should take over from the president, avoiding any power vacuum from the start. The president is succeeded by the vice president. If the latter cannot or does not want to replace him, the new head of the executive is indicated following a hierarchical line, for which the designation passes, in order, to the Speaker (the president) of the Chamber, to the president pro tempore of the Senate (who presides over the sessions in place of the vice president of the United States, when the latter is engaged in other institutional tasks) and to the heads of the departments based on the seniority of establishment of the respective departments (the oldest is the Department of State, created in 1789; the most recent is the Department of Internal Security, established in 2002), until the holder of one of these positions who has the requirements to become President is identified.
Let's remember them for a moment?
Be at least 35 years old, have resided in the United States for at least 14 years, and have been an American citizen since birth. For example, two famous secretaries of state, Henry Kissinger for the Nixon administration and Madeleine Albright for the Clinton administration, although their position was the fourth in the presidential succession, were excluded because at birth they had been citizens of Germany and Czechoslovakia respectively.
We have reached the end of this cycle of interviews with Professor Luconi. We hope to have contributed to better understanding the rather complex mechanisms that govern one of the central events of 2024, the American presidential elections. We will collect all these materials in a document that will be downloadable a few days before the elections on November 5th. In the following days we will return to comment with Professor Luconi on the outcome of the elections, always analyzed from an institutional and technical point of view.
Stefano Luconi teaches History of the United States of America in the Department of Historical, Geographical and Antiquity 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 dark 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 paper edition, €6,99 Kindle edition
Stefano Luconi, “American institutions from the drafting of the Constitution to Biden, 1787–2022”, goWare, 2022, pp. 182, €12,35 paper edition, €6,99 Kindle edition
