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Explained: What obstacles stand between Joe Biden and the presidency?

Trump has already refused to concede and has instead vowed to launch a legal assault on the Biden campaign to challenge their victory.

By: Explained Desk | New Delhi |
Updated: November 12, 2020 9:52:36 am
US elections, Joe Biden, Donald trump, Biden in white house, biden presidency, trump legal challenges, trump challenge election result, US election recount which states, express explained, indian expressPresident-elect Joe Biden gestures to supporters on Saturday, November 7, in Wilmington, Delaware. (Photo: AP)

Democrat Joe Biden defeated President Donald Trump to become the United States’ 46th president on Saturday, nearly four days after the country’s polling day. With over 75 million votes so far, president-elect Biden has received more than 50 per cent of the country’s popular vote, compared with Trump’s 48 per cent.

In any other election, there should have been a smooth transition of power from the incumbent to his successor in the next two months. But this is no ordinary election. There are many potential obstacles that could stand between Biden and his formal inauguration, which is slated to take place on January 20 next year.

In fact, months ahead of polling day, a bipartisan group of more than 100 former government and military officials, academic and journalists, who called themselves the “Transition Integrity Project”, warned that the transition process could ultimately even lead to a constitutional crisis.

What if Trump does not concede?

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Trump has already refused to concede and has instead vowed to launch a legal assault on the Biden campaign to challenge their victory. But while a private telephone call to the winner of the race and a public concession are long-standing American traditions, they are by no means obligatory.

In a thinly-veiled attack on Trump, a spokesperson for Biden issued a blunt statement saying that the government “is perfectly capable of escorting trespassers out of the White House” if the need arises.

But Trump does have a few legal obligations as incumbent president. He is required to take care of the logistics so that Biden’s team can eventually take over. According to the BBC, the Trump administration has already started this process.

Also in Explained | Trump says election being ‘stolen from him’. What are his allegations?

What are the legal challenges Biden may face?


The Trump campaign has filed a host of lawsuits challenging the election results in different key battleground states across the country, where the President was defeated by a narrow margin. Most of the cases were filed in Pennsylvania, Georgia, Nevada, and Michigan — where the Trump campaign called for counting to be halted or ceased altogether.

Trump has repeatedly made a distinction between “legal” and “illegal” votes — the latter referring to absentee ballots that he claims, without proof, were sent in after election day.

In fact, soon after the Associated Press projected Biden’s win in Pennsylvania, which pushed him past the 270 electoral votes he needed to clinch the presidency, Trump’s lawyer Rudy Giuliani alleged that counting and processing of absentee ballots in Philadelphia had been fraudulent.


But legal experts have said that these lawsuits have little scope of destabilising Biden’s lead, which has only widened over the last two days. In fact, several of the suits have already been dismissed. This is because instances of voter fraud in the US are extremely rare since the processing and counting of ballots, particularly the mail-in variety, is closely tracked by election officials.

Could recounts take place in some states?

Yes. Several states in the US allow recounts to take place if the difference in votes between the candidates falls within a certain margin or if voting irregularities are detected.

In states like Wisconsin, for instance, a candidate can call for a recount if the margin is less than 1 percentage point. The Trump campaign has already asked for a recount in the state, where Biden leads by around 0.7 percentage points.

Meanwhile in Georgia, the margin has to be less than 0.5 per cent of votes cast to qualify for a recount. Election officials in the state called for a recount on Friday after the race was deemed “too close to call”. Biden is currently leading here by a mere 0.2 percentage points.

But recounts rarely change the results of the race. According to data released by voting reform group FairVote, 5,778 statewide elections have been held between 2000 and 2019. Of these, 31 led to statewide recounts. Only three of these recounts concluded with a reversal of the original result.


Also in Explained | What does President-elect Joe Biden mean for India and its relationship with the US?

Who are electors and what are the challenges they might pose?


As per the US’ electoral college system, voters do not cast their ballot directly for the presidential candidates themselves. Instead of voting for either Trump or Biden, they are actually choosing an ‘elector’ who is a representative of that candidate’s party. The electors, in turn, cast their votes for the president.

The US’ electoral college system comprises 538 electors from across all 50 states. To win, a candidate has to secure at least half plus one, or a total of 270 electoral votes.


One week after election day, states begin to certify election results. While news organisations have already called the winner of the race and Biden and Harris have delivered their acceptance speeches, US law mandates that state results are not official until the statewide certification process is completed.

On December 14, electors chosen by the parties will all meet to cast their ballot for president. While these electors generally act in accordance with the will of the people, it is not guaranteed by the constitution.

There is the occasional “faithless elector” — a member of the electoral college who does not vote for the presidential candidate they pledged to vote for and instead votes for another candidate or not at all. But several US states require their presidential electors to vote in accordance with the popular vote.

According to data on the US’ National Archives website, it is rare for an elector to go against their pledge. “Throughout our history as a nation, more than 99 percent of electors have voted as pledged,” a summary on the website reads.

Earlier this year, the Supreme Court decided that individual states can impose restrictions on the way electors vote to ensure that they do not defect from their pledged vote.

By December 23, the certified electoral votes have to arrive at Capitol Hill from the respective states. A new Congress is sworn in by January 3 and three days later, a joint session of the House and Senate assemble to count electoral votes and finally declare the result.

Once the votes are counted and one candidate appears to have clinched the 270 electoral votes required to win the presidency, the vice president — who is also the president of the Senate — formally announces the result.📣 Express Explained is now on Telegram

This congressional count is the last time a candidate can challenge the results. A complaint has to be made in writing by at least one member of the House and Senate for it to be considered. Then the joint session debates the objection for up to two hours. For the objection to move forward, both chambers have to be in agreement.

If Democrats manage to retain control of the house and Republicans control the senate, it will be difficult for an objection to move forward.

Finally, the inauguration event on January 20 marks the culmination of the transition process, with the new President and Vice President taking the oath of office.

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First published on: 08-11-2020 at 08:06:11 pm
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