Georgia Secretary of State Brad Raffensperger has until Friday to certify the results of the Nov. 3 election, but that won’t be anywhere close to the last act of the two-month drama expected to play out before the January presidential inauguration.
Democrat Joe Biden has been declared the winner in Georgia and the nation, but President Trump continues to fight the results, making unsubstantiated claims that widespread fraud robbed him of victory.
Georgia legislative leaders have not joined the call by some conservatives to overturn the results by picking a GOP set of presidential electors.
So, if Raffensperger certifies the results, as expected on Friday, the next step will be for Gov. Brian Kemp to certify the 16 Democratic electors for the state by 5 p.m. Saturday.
Trump’s lawyers, who so far have made little progress in lawsuits in contested states, can ask for another recount after the certification. A hand recount in Georgia was to be completed Wednesday and state officials expect it to show Biden still in the lead.
If the vote and electors are certified, the next big date is Dec. 8, known as the safe harbor deadline. Federal law negates further challenges if a state settles legal disputes and certifies its results at least six days before the Electoral College meeting.
On Dec. 14, the electoral college meets to cast the state’s vote for president. In almost every state, the electoral college is a “winner takes all" scenario, so in Georgia’s case, all 16 electoral college votes would go to Biden. The Democratic electors chosen earlier this month are a collection of politicians, power-brokers and activists.
By Dec. 23, states have to formally transmit those votes to Congress. The new Congress is sworn in on Jan. 3, and the U.S. House and Senate convene for a joint session on Jan. 6 to count electoral votes and formally certify the winner.
Inauguration Day is Jan. 20.
That’s the process in a normal presidential election year, but of course, this year has been anything but normal.
Even before the vote, there was widespread speculation that Trump wouldn’t concede if he lost and that he’d blame voter fraud and claim a rigged election. The fact that so many Americans voted absentee because of the coronavirus pandemic meant the counting of votes took days in some states. That, in turn, made claiming fraud easier, even though the president himself has voted by mail.
Some have raised concerns that the president’s teams of lawyers across the country will seek to raise doubt about the results and delay the process in hopes that Republican state legislatures or Congress will flip the outcome.
One of the scenarios involved GOP-led legislatures in contested states picking their own electors, ignoring the popular vote. Presidential election outcomes, after all, are decided by the electoral college, not who gets the most votes in an election.
Many legal experts have expressed skepticism such a maneuver would be legal, or work.
But that hasn’t stopped supporters of the president — including talk radio host Mark Levin, some Republican congressmen, and even governors — from suggesting GOP-led legislatures do just that.
Republican legislative leaders in key states have said they won’t pick new electors. One Georgia legislative aide compared the idea to discussing the existence of Bigfoot or the Easter Bunny.
The Electoral Count Act — an 1876 law — says that legislators can step in and pick electors in the event of a “failed election” in which voters have not made a choice for president.
Election officials in Georgia have said the general election came off with relatively minimal problems, particularly when compared to the June primaries, and that there was no evidence of fraud. Republican Lt. Gov. Geoff Duncan took to CNN to say there was no evidence of any systemic wrongdoing, despite claims by Trump supporters and lawyers.
Critics of the president’s post-election strategy have said lawsuits filed by the Trump campaign appear to be aimed at slowing down the vote certifications, allowing it to argue the election was “failed.”
Eric Segall, a Georgia State University professor who teachers constitutional law, said the process of picking a president “is not really that complicated as long as you understand there is possible chaos at the end.”
Segall said Georgia lawmakers can change the way electors are chosen in the state, but can’t do so retroactively.
Kemp and top legislative leaders released a joint statement last week throwing cold water on the idea that he’d call a special legislative session to overhaul voting rules before the Jan. 5 U.S. Senate runoffs in Georgia.
“Any changes to Georgia’s election laws made in a special session will not have any impact on an ongoing election and would only result in endless litigation,” said Kemp, House Speaker David Ralston and Duncan, all Republicans.
So Republican lawmakers won’t be meeting before the end of the year. The regular session of the Legislature begins the week after Congress counts the electoral vote and a week before the inauguration.
Segall said there would almost certainly be “massive unrest” if the General Assembly’s Republican leadership picked electors after Biden won the vote in Georgia. “I don’t think that is going to happen in Georgia,” he added.
But, he said of the process, "Everything we are talking about is on paper. Paper is good when the respect for rule of law is present.”
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