U.S. Election Matters: contested Presidential Election scenario planning

Welcome to Election Matters – a special, elections-focused edition of Policy Matters. This edition of Election Matters focuses on what happens after the polls close on Election Day, specifically the timeline of events, new laws that change the way the election can be contested and the major scenarios for which the presidential candidates, political parties and government are preparing.

REMIND ME, WHAT IS THE ELECTORAL COLLEGE?

The Electoral College is the process by which the United States elects the President. Victory for the presidency requires 270 electoral votes. A president can be elected with the right combination of states in the Electoral College without winning the popular vote. If no candidate receives a majority of electoral votes, the presidential election leaves the Electoral College process and moves to Congress.

WHAT HAPPENS AFTER THE POLLS CLOSE

On Election Day, polls will close at rolling times in accordance with state law, commencing the Electoral College process:

  • Election Night, November 5: Polls close
    • Following the polls closing in each state across the country, ballots are counted. In some states, processing and/or counting of absentee/mail-in and early voting ballots may begin before Election Day; in other states, it cannot begin until after polls close.
    • As vote counts come in, the news media will analyze the data and begin projecting or declaring winners by state.
      • Since 1848 – the first presidential election after Congress’s adoption of a single national “Election Day” – the Associated Press has played a central role in declaring the winners of elections up and down the ballot across the country. Read more on how the Associated Press declares election winners.
    • It’s possible one candidate will hold a significant enough lead for the media to declare a projected winner and announce the next President-Elect of the United States on November 5 or early November 6. In this case, the other candidate may concede.
    • Given the anticipation of another tight race in a number of decisive swing states, it is entirely likely the presidential race – as well as other races determining control of Congress – may not be called on Election Night.
      • In 2020, the AP and other major media organizations did not call the election for President Biden until November 7 – the Saturday after Election Day – when the winner of Pennsylvania was determined.
      • The results of any election are never finalized on Election Night: It takes election officials days or weeks to fully canvass and then certify the results.
  • By December 11: States formally certify their elections
    • By December 11, each state must formally certify their presidential election results.
  • December 17: Electoral College meets
    • The constitutionally required convening of the Electoral College is when electors sent by their states officially select the next President and Vice President of the United States.
  • By December 25: Congress receives electoral votes
  • January 3: 119th Congress as elected on November 5 convenes 
  • January 6: Congress counts electoral votes and certifies election
    • In a joint session, Congress meets to count the electoral votes formally. This is the final step in the election certification process.
  • January 20: Inauguration Day for the 47th President of the United States

POST-JANUARY 6 REFORMS TO THE ELECTORAL PROCESS

Following the attack on the Capitol that disrupted the Electoral College certification on January 6, 2021, Congress passed the bipartisan Electoral Count Reform and Presidential Transition Improvement Act – new rules to further clarify the election certification process with the goal of preventing future attempts to overturn presidential election results. The law:

  • Clarifies that the vice president’s role in certifying electoral votes is purely ceremonial, thus preventing any future attempts to manipulate this position to alter the outcome. This follows then-President Trump’s attempts to pressure then-Vice President Mike Pence to overturn the 2020 election results.
  • Raises the threshold for members of Congress to object to a state’s electoral votes from just one member of each chamber to one-fifth.
  • Ensures that only one slate of electors, certified by a state’s governor, can be sent to Congress, eliminating the possibility of competing slates being submitted.
  • Tightens the criteria for a state to move its presidential election date, limiting such actions to extraordinary events such as natural disasters.

POST-ELECTION UNCERTAINTY AND CHALLENGES

While these reforms represent a significant step toward protecting the integrity of future elections, challenges to democracy remain, particularly as disputes over voter rolls and election outcomes up and down ballot continue to arise. States have pursued significant election-related legislation since 2020 – as many of 6,450 bills have been introduced to make changes, big and small, to voting processes – with hundreds of laws enacted, including in several key swing states.

If Vice President Kamala Harris is declared the winner, it is highly likely former President Trump refuses to concede regardless of how close the election may or may not be. Trump never conceded the race in 2020. He and his allies have continued to question American election integrity through lawsuits, conspiracy theories and rhetoric, precipitating instances of protest and violence. He recently warned consequences for lawyers, donors and election officials involved in “unscrupulous behavior” in the 2024 election.

Heading into the 2024 Election, each campaign has hundreds of lawyers on standby to file and counter legal challenges. This summer, the Republican National Committee (RNC) launched an “election integrity” effort in swing states, aiming to deploy thousands of polling place monitors, poll workers and lawyers to prevent “cheating.” In Georgia, the state’s five-member election board passed new rules this summer that could introduce opportunities for contesting election results in this key swing state. Many jurisdictions have implemented new measures designed to fight mistrust and mitigate voters’ concerns about “rigged” elections through greater transparency.

On the Democratic side, earlier this year, some Democrats suggested they might challenge a Trump victory during the electoral certification process, arguing that he is disqualified under the 14th Amendment’s so-called “Insurrection Clause.” However, congressional Democrats have since indicated they would not pursue such an action, particularly following a Supreme Court ruling.

PRESIDENTIAL ELECTION SCENARIOS

The presidential election may involve a variety of scenarios in which the outcome is contested:

Primary scenarios

  1. Race is too close to call on Election Night, and no winner is declared for days or weeks following November 5.
    • This scenario could include pending legal challenges from either or both campaigns across the states related to ballots, vote counting or any alleged irregularities.
    • Protests, unrest and/or violence could accompany this period of uncertainty.
  1. A winner is declared, but the loser refuses to concede and files lawsuits to stop or challenge the count and electoral process in key states.
    • Even after a winner is declared – either by the media or through the state certification process resulting in one candidate reaching 270 electoral votes – the losing campaign may request the courts to intervene if they believe a law has been broken in the electoral process.
    • Protests, unrest and/or violence could accompany this period of uncertainty.
  1. The candidates are tied in the Electoral College following all vote counting and/or legal challenges.
    • While not an especially likely outcome, a tie – or “contingent election” – is plausible depending on the combination of states each candidate wins, plus wins in congressional districts in Maine and Nebraska, where electors are not winner-take-all.
    • Under the 12th Amendment of the Constitution – which has never been implemented this way – the 119th Congress, sworn in on January 3, would determine the outcome on January 6, 2025.
    • This process and any outcome could well lead to protests, unrest and violence.

Secondary scenarios

  1. The legal process concludes, ultimately resulting in the losing candidate conceding.
    • The losing candidate’s supporters could still protest, leading to potential unrest and violence.
  1. The legal process concludes, impacting the count in a decisive state and changing the projected Electoral College winner.
    • The losing candidate’s supporters could still protest, leading to potential unrest and violence.
  1. Following the exhaustion of the legal process with no change in outcome, the losing candidate refuses to concede the election and resorts to extreme measures and/or threatening, violent rhetoric.
    • While a peaceful transition of power is a hallmark aspect of American democracy, in today’s political environment, it is entirely possible for a candidate to lose, use every legal option at their disposal and still refuse to concede defeat, choosing instead to motivate their supporters to take extreme acts that can result in violence.
    • As witnessed in 2020, just because legal remedies are exhausted, that does not mean a candidate loses the ability to motivate their supporters to action.
    • Changes in law and power since 2020 are meant to make the process of overturning the election results more difficult.
    • There could still be issues during the final certification process on January 6. The Department of Homeland Security (DHS) has officially designated the January 6 certification a “national special security event.”

Organizations should prepare for these scenarios and brace for other possibilities. The Weber Shandwick Collective’s Elections Task Force hosts workshops with clients to map out their plans of response for both internal and external communications.

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Throughout the course of the 2024 election cycle, our Global Elections Task Force has been providing data-driven election insights, analysis, and real-time counsel to our team and clients. Get timely insights on our Election Matters home page.