15

In the year 2000, the state of Florida was in the process of various recounts when Bush v Gore put an end to the process on Dec 12, 2000, which allowed George W. Bush to become the 43th President after being awarded Florida's electoral votes.

While unlikely, there is a distinct possibility that there could be enough contested states still fighting it out like that in 2020 (due to various court-mandated rule changes and close counts with disputed absentee/main-in balloting) that come mid-December there's no winner in the Electoral College to vote on. It's even possible these drag on through the courts and come Jan 20, 2021, there's no winner to inaugurate. This answer notes

In a nightmare scenario where the popular vote cannot be certified or cannot be certified in time, the realistic option would be for the state legislature to appoint a slate of Electoral College delegates instead. The date the Electoral College meets (December 14 this year) is specified by Federal law so that cannot realistically be moved. Federal law sets a "safe harbor" date (December 8 this year) which is the deadline for states to choose their slate of electors and ensure that Congress accepts them. It is highly unlikely that you could have an election November 3, count the ballots, work through the litigation that would undoubtedly arise if there was large-scale fraud or large-scale disenfranchisement due to riots or COVID or some other reason, schedule and hold a new election, count those ballots, and have the resulting slate of electors appointed by December 8. And if the issues are not with fraud but with an inability to completely count or recount the votes quickly enough because of delays due to COVID, states rushing to adopt widespread mail-in voting, court challenges, etc., starting a new election would be counterproductive. There are reports that both sides have already started game planning scenarios in which friendly legislatures or governors in swing states are called on to do just this.

That's fine, but I could easily see Federal courts jumping in and enjoining states where the outcome of one or more court cases will determine which ballots can and cannot be counted. So let's say Trump ends election night up by 500 votes in Michigan (which he needs to win), but 3000 Biden votes are ruled invalid (didn't properly sign, returned too late, etc.). There would be a Federal lawsuit and that lawsuit would undoubtedly enjoin the state legislature from appointing electors (and possibly postponing the Electoral College itself). As there's only 79 days between Election Day and Jan 20, that doesn't leave much time to resolve the status of states. Neither side seems likely to concede.

If there's no clear winner by noon, Jan 20, what happens?

  • 1
    Do you mean what legal interpretations are there on what might happen, or what actions could be taken which could be decided to be legal once the shooting stops? – origimbo Oct 19 at 20:23
  • @origimbo What concrete steps could be taken if there's no winner? Someone has to take the oath of office. How does that person get picked? – Machavity Oct 19 at 20:31
  • 4
    The scenario that is proposed is pretty much certain not to happen. Courts would lose subject matter jurisdiction as moot by December 14, 2020. At that point, Congress decides and it becomes non-justiciable. The only hold up from January 3 to January 20, 2020 would be in Congress itself. – ohwilleke Oct 19 at 23:08
31

First, the mandate to Donald Trump, granted in November, 2016 ends at Noon January 20, 2021. No need for him to do anything.

The Twentieth Amendment to the Constitution deals with the situation where no person has yet qualified to be elected President for the term starting at 12:00:01 January 20, 2021:

Section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

provides for almost any eventuality. The chain of Presidential succession (as in the designated survivor) is the provision by Congress for choosing the right person to be inaugurated

In the case, if the House and Senate have not yet chosen a P and VP, then the Speaker of the (new) House of Representatives will take the oath of office...

| improve this answer | |
  • In this hypothetical scenario where the Speaker takes the oath, would they be the President for the full four years, or only temporary until the courts or congress work out who is the valid winner of the election? – Marc Paul Oct 19 at 21:41
  • 14
    @MarcPaul read the quote. It says "such person shall act accordingly until a President or Vice President shall have qualified" – Burt Oct 19 at 23:20
  • Would the Speaker take an additional oath of office for the acting presidency? Did Cheney have to do the same? – Connor Oct 20 at 6:26
  • 1
    It may be worth noting that the Speaker would, in this circumstance, be required to retire as a Representative of their state and district, and an acting representative would have to be appointed and a special election scheduled for that district. The House would have to vote for a new Speaker. This would be “for real”—even after a President and Vice President were determined, the former Speaker would still no longer be a Representative (though if the timing worked out they might be able to run in the special election, and one presumes they’d have pretty good odds there). – KRyan Oct 20 at 14:20

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .