Though states finalize and certify their results after every election, the process of confirming the winner of the general election has taken on new significance this year, as President Donald Trump continues to contest his loss.
States certify their results after reviewing disputed ballots, conducting post-election audits, and double-checking numbers for accuracy. Federal, state, and local election officials from both political parties have said there was no widespread fraud or irregularities in the 2020 election.
Certifying election results is typically a formality, but the arcane process has become the latest battleground in Trump’s longshot attempt to cling onto power. His campaign is trying to block or delay certification in key states in hopes of overturning Biden’s victory through the Electoral College.
The idea is that if there’s no certification, then Republican-run state legislatures in a few key states could appoint pro-Trump slates of presidential electors, even though Biden won the popular vote in their state.
“This is why they want to delay certification, because delaying certification could be a predicate to arguing that the state didn’t make a choice, and that the legislature should step in,” said Rick Hasen, a CNN contributor and an election law professor at the University of California, Irvine.
Senior GOP lawmakers in key states like Pennsylvania and Wisconsin have already rejected this idea, and some states have laws explicitly ruling out this option.
Pennsylvania House Majority Leader Kerry Benninghoff, a Republican, told reporters earlier this month that lawmakers don’t have the legal grounds to appoint their own electors. While a spokesperson for Pennsylvania Senate Majority Leader Jake Corman, another Republican, also poured cold water on the idea of appointing electors that didn’t support the winner of the statewide vote.
“Our legislation, election code makes it clear we have nothing to do with selecting electors,” spokesperson Jennifer Kocher said, adding that Corman is not considering appointing pro-Trump electors and has never considered that as a possibility.
The scheme essentially becomes impossible if key states certify their presidential results before December 8, which is known as a “safe harbor” deadline under federal law. When Congress tallies the electoral votes in January, it must accept electors that were certified before the deadline. If a state missed the deadline, then Congress can consider disputed slates of electors.
“Every day that passes makes it legally and politically less likely that Trump can pull off this crazy attempt to subvert the will of the people,” Hasen said. “The system is kind of on autopilot.”