Joe Biden has been declared the winner of the presidential election and will be the 46th President of the United States, and Kamala Harris the first woman elected Vice-President.

More than 149 million Americans went to the polls to choose the next President of the United States, about 12 million more votes than four years ago.

These are the presidential elections with the biggest turnout rate since at least 1900, when Republican Willian McKinley – having Theodore Roosevelt by his side – won Democrat William Jennings Bryan.

The pandemic led to a substantial portion of American voters deciding to vote by mail, causing a delay in counting votes. It took the American press almost a week to declare a winner.

Joe Biden and Kamala Harris have 5 million more votes than the Republican ticket. The campaign of Donald Trump and Mike Pence filed several lawsuits in court to dispute the results achieved so far. What is at stake and when will this dispute be resolved?

How are the votes counted?

The US electoral system is organized State by State. The votes are counted county by county, and as they get results they upload them first in their own system and then send the results to the centralized system of the State of which they are part.

The first results that are known on election night and the following nights are not official results, that is, they have not yet been certified by the State. It is only after being certified by the authorities of each State that the results become official.

Different states, different rules

The way States count votes is a matter decided by the Congress of each State. And this year there are notable differences that explain the delay in disclosing the results, especially due to the number of people who voted by mail, rather than doing so on the same day.

For example, in Pennsylvania, votes by mail were valid until November 6th, Friday, as long as they were sent by November 3rd – on election day. In Georgia, those votes could arrive until the 10th. In other States, the only votes counted were the ones that arrived until the 3rd.

There are still other fundamental differences in the count. Most States were able to start counting votes by mail before election day, thus advancing work and processing the votes faster. But in three of the most disputed States, this was not permitted by law, cases like Pennsylvania, Michigan, and Wisconsin.

Since Democrats campaigned for early and mail vote, and Republicans deeply discouraged this option, this created profound imbalances in the results presented depending on the moment: the first votes were mostly Republican (when face-to-face votes were counted); the rest were mostly Democrats (mail votes).

Processes and recounts

The Republican campaign filed several lawsuits in court to ask for a new vote count in some States, in others calling for the mail votes to be invalidated for alleged vote-counting fraud.

There are several allegations, depending on the States, ranging from the alleged misuse of a permanent ink pen instead of a ballpoint pen, to the distance that observers of each party could be at the polling stations, to the attempt to disqualify all votes that arrived after day 3, despite the laws of each State. The cases are expected to be settled in the upcoming weeks and, at the most, can be reviewed by the US Supreme Court.

Right now, the battlefield is in seven decisive states: Arizona, Michigan, Wisconsin, Pennsylvania, Georgia, Nevada, and North Carolina. In these, the rules for a new vote count are very different:

  • Pennsylvania: when the difference between the two candidates is equal to or less than 0.5%, the recount is automatic and must be finalized within three weeks of the election. In this state, Joe Biden won by 0.79%.
  • Michigan: in order to have a new count, the two candidates must be separated by less than 2,000 votes. According to the latest data, Joe Biden had a 136.000 vote lead in this State.
  • Wisconsin: when the result is equal to or less than 1%, campaigns may request a recount. There is no automatic recount and those who request the new count must pay for it. The results should be known up to 13 days after the official order for new counting. Joe Biden wins in this State by 0.63%.
  • Arizona: the votes are counted again only if the margin of victory is less than 0.1%. If this is the case, the new count is automatic. Campaigns may not require a new vote count. Joe Biden wins in this State by 0.34%.
  • Georgia: you can request a new count if the margin of victory is equal to or less than 0.5%. In this case, the person in charge of the process in the State of Georgia announced himself a new count, since the margin of victory was less than 0.3%.
  • Nevada: campaigns can request a new count up to three days after the election regardless of the outcome. The new count must be completed up to 10 days after the order (six business days) and those who request the recount must pay it.
  • North Carolina: the new count is allowed as long as the margin that separates candidates is equal to or less than 0.5%. Donald Trump wins this State by 1.34%.

Who declares the winner?

In the United States, who traditionally first declares the winner of the elections are the media, some with support of specialized companies. This happens when one of the candidates does not seem to have a viable path to victory.

In recent decades, the reference is the Associated Press (AP). The US news agency uses a different model from the other ones, because it doesn’t count on the polls, but rather makes projections on whether each of the candidates still has a viable path to victory in each state.

When a candidate gets the sum of States that allows him to reach 270 electoral college votes (half plus one), the Associated Press and the remaining chains declare the winner.

From there it’s official?

No. The media doesn’t determine the winner, but traditionally the unsuccessful candidates concede defeat when these results are declared, since the votes no longer allow to reach the victory in the Electoral College.

The concession by the defeated candidate allows avoiding the suspense of waiting months for official confirmation of the results.

How do you officially certify the winner?

The election of the President of the United States is not a direct election on the terms we know in Portugal. Each State corresponds to a number of votes in the Electoral College, a number that is determined according to the area and the population of that State.

The victory is determined by the number of votes for the Electoral College that each of the candidates gets. Reaching 270, victory is guaranteed. But this victory is not certified straightaway and has several stages:

  • Firstly:each state will have to certify its own result. All internal disputes over the results must be resolved by December 8th, when the results must be determined and how many Electoral College votes each party will have.
  • Second:the Governor of the State certifies the results and the number of corresponding voters for the winning party. On the 14th, these voters – members of each party chosen before the elections – will gather in the capitals of their respective States to finalize the election result.
  • Third:the result is sent to the United States Congress that takes office on January 3rd. Three days later, in a joint session between the Senate and the House of Representatives, the votes are counted and the winner determined. When a candidate reaches 270 votes, the Vice-President of the United States, who chairs the Senate, announces the results.

Can the chosen delegates vote in a different direction from the State’s result?

They can, but it’s complicated and limited. That is, each State chooses a set of delegates who must vote according to the result achieved in the State. When this Electoral College vote actually happens, delegates can vote the other way. These are so-called faithless electors.

In the US, 33 of the 50 states have laws in opposition to delegates voting against whom their State has mandated them to vote, depending on the election results. Although only half of these States have mechanisms to enforce the law – such as fines – in 2016 only 10 of these delegates tried to vote differently. Of these, three votes were invalidated or the delegate was replaced by another.

What does uncertainty mean for the transition of power?

In the US, as in many countries, the period between the date of the election and the inauguration is used to prepare the new team – if applicable – to take the reins of the Government. This involves meetings between teams from various departments and institutions to pass the state of the situation, ongoing legislation, pending legal issues, and other important issues.

One of the most important parts of this transition concerns security issues. The President-elect now receives the President’s Daily Briefing every day from the election to the inauguration, a daily summary received in the morning with the most sensitive information, including ongoing operations by the CIA and potential threats to American interests.

Another important part of the transition is the placement of future key department managers to work in person in these departments so that they are prepared when they assume their responsibilities on January 20th.

But for that to happen, and for the transition team to have the funding provided by the federal government to work, it is necessary certification by the General Services Administration, something that has not happened so far.

Inauguration Day

Once all these issues are resolved, whether or not the intervention of the US Supreme Court is necessary, the inauguration of the new President of the United States will take place on January 20th, 2021, on Inauguration Day.