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U.S. election: How true is claim that Biden is not yet president-elect?

Donald Trump (left), Joe Biden (right). Photo Credit: NBC 8 mins read

Claim: A viral WhatsApp message claims nobody is President-elect in the United State until the safe harbour period (between November 3 and December 8) is over.

Mostly True. While it is true there is a safe harbour deadline and other timelines before the swearing-in of the president, the use of the term President-elect is not forbidden and has been used for years to refer to a presidential candidate who has won the majority vote. 

Full Text

The United State of America’s presidential election which took place last Tuesday, November 3, 2020, has become the centre of discussion as the world continues to pay close attention to events as they unfold.

The election between Donald Trump of the Republican Party and Joe Biden of the Democratic Party was a close battle but so far Joe Biden beat incumbent President, Donald Trump, by scoring 273 electoral college votes against Trump’s 214 votes.

However, a viral WhatsApp message claims no one is president-elect until “the harbour period” is over. This “harbour period” has been described as the period between November 3 and and December 8 within which elections are held, result counted, votes certified by states, electoral bodies, electoral colleges, and all court cases are resolved.

The message went further to say that after this period, on December 14, the President, the Vice President, and electors from all electoral colleges will be elected. Afterward, on December 23, states must send all verified votes and electoral college votes to the president of the Senate who is the current Vice President.

Subsequently, on January 3, a new senate and house of representatives are sworn in, after which the president of the new senate takes the votes to the new senate to recount and presents the results to the house on January 6. According to the message, it is on this day that the president is known, after official  swearing in is done on January 20. Anything short of this, the message noted is just entertainment.

Screenshot of viral WhatsApp message.

Verification

The United States (U.S) presidential election is a two-step process. The general voters cast their ballots to elect the electors who in turn meet to formally elect the President. In the U.S whose democracy is over 200 years old, there is no central or federal electoral commission that conducts the presidential election.

All elections (federal, state, and local) are conducted by each of the 50 states and the capital territory. And this  includes choosing the electors in the Electoral College that elects the president. While Americans took to the polls on November 3, 2020 and voted, they have not really selected the next president of the United States. Technically, the president and vice-president are selected by a group of electors, collectively known as the Electoral College. 

In a nutshell, when voters go to the polls, they are voting for the Electoral College, which then elects the president and vice-president. This means winning the democratic popular vote in the U.S does not determine who is president but winning the Electoral College vote. Although the winner is mostly known once the election is over, members of the Electoral College, however, statutorily meet on December 14 to ratify the election of the winner.

The Electoral College

The Electoral College is made up of temporarily selected state representatives known as electors. In total, there are 538 members of the Electoral College, representing the 50 states and the nation’s capital, Washington, District of Columbia (D.C.). The winner of the elections must win at least 270 votes.

The constitution of the United States mandates that the number of the electors equals the number of congressional delegations, that is, the total number of senators and house of representatives. A 1961 constitutional amendment further increased the number of electors to include representation from D.C which has no member of congress. 

The total number of electors is broken down into: 100 Senators, 435 House of Representatives and 3 electors representing Washington D.C.

While each state has exactly two senators, the number of House of Representatives depends on the number of congressional districts which can vary. For example, while states like New York and Florida both have 27 representatives, others like Alaska and Delaware each have one. California has the highest number of representatives with 53 members.

This year, the Electoral College will meet on December 14, following the general elections, to cast their ballots for the president and vice-president in the individual states and D.C. Usually, the votes of the electoral college is presumed to be based on the outcome of the general elections and the general rules followed by each state. Individual states determine how members of the Electoral College vote.

It is worthy of note that the majority of states follow a winner-takes-all approach, that is, whoever gets the majority votes in the general elections in each state automatically wins all Electoral College votes in that state. Forty-eight states follow this rule while Maine and Nebraska, follow an Electoral College voting system that splits the Electoral College votes between congressional district voter outcome and the state-wide outcome

What does the U.S Constitution say?

According to article II section 1 of the U.S constitution, each state is responsible for appointing electors who shall meet in their respective states, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same state with themselves. They shall subsequently make a list of all the persons voted for, and of the number of votes for each. These votes are signed and certified, and transmitted sealed to the seat of the government of the United State, directed to the President of the Senate. 

The President of the Senate shall then in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed. But if there is more than one who has such a majority and an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President.

But if eventually, no person has a majority, then from the five highest on the list, the said House shall in like manner choose the President. But in choosing the President, the votes shall be taken by States, the representation from each state having one vote. A quorum for this purpose shall consist of a member or members from two thirds of the states, and a majority of all the states shall be necessary to a choice.

Note that the Congress may determine the time of choosing the electors, and the day on which they shall give their votes. This day shall be the same throughout the United States.

Screenshot of parts of the U.S constitution.

Where are we now?

Currently, Biden, a former vice president under Barack Obama, passed the 270 electoral vote threshold needed for victory on Saturday November 7, 2020, winning the states of Pennsylvania and Nevada. While Biden has started making plans for office, President Donald Trump is yet to concede defeat on grounds of voting fraud noting he will continue to challenge results in several states. Biden reacting to Trump’s refusal to concede defeat said it is embarrassing. 

Despite this win, there are a few things that must happen before a new term begins. This period is described as the transition phase. This phase is the period between the election result and the start of the new presidential term on 20 January. Within this period, the incoming president is to assemble a group called a transition team which prepares to assume power immediately after inauguration. So far Biden has set up his team already. The new term of office begins January 20, 2021, when a ceremony called the inauguration takes place in the capital, Washington DC.

A report by the British Broadcasting Corporation/(BBC) highlighted and explained terms that will be frequently used during this period. First is the term President-elect. A candidate who wins the election but is yet to be sworn in as the new president on January 20, is referred to as President-elect.

Also, the term Cabinet will be used for the top team at the highest level of government which will be announced by Joe Biden. This team includes heads of all the key departments and agencies. This will, however, require approval from the Senate. The people picked by Mr Biden are interviewed by Senate committees in a hearing known as the confirmation hearing which is followed by a vote to approve or reject. 

Another keyword is “Celtic.” As president-elect, Biden gets increased protection from the Secret Service and his codename is Celtic. These names are chosen by the candidate. For Trump it was Mogul and Kamala Harris has reportedly picked Pioneer.

What is the Safe harbor deadline?

The safe harbor period which was referred to in the viral WhatsApp message has been made reference to in different documents regarding the election as the safe harbor deadline. This deadline is December 8,2020.

An explainer article by Bloomberg noted this as a period where states have the opportunity to resolve any dispute around votes cast and certify these votes. 

The 2020 presidential election timeline by the electoral college also discussed this, noting it is a deadline set for states to resolve anything around vote contestation after which the governor of that state is to send a certificate describing how the determination was made to the Archivist as soon as practicable.

Screenshot of the electoral college 2020 presidential election timeline.

Who is a president-elect?

The term president-elect is used to refer to a candidate who has met the requirements of winning an election.

For decades, this term has been used by the media to describe the presidential candidate with the most electoral votes. 

A report by Aljazeera described Joe Biden as president-elect having passed the 270 vote electoral college threshold needed to claim victory in the 2020 presidential election.

In a similar report Joe Biden was referred to as president-elect. 

However, this unofficial term is generating controversy in this year’s election. NBC12 in it’s report noted it had received complaints about calling Joe Biden President-elect.

The Phrase, president-elect appears in the 20th Amendment, ratified in 1933. It is used there to allow the vice president-elect to become president if a President-elect dies before taking the oath of office.

According to the Executive Director of UVA Center for Politics, Larry Sabato, the term president-elect is not new.

“The difference is they liked the result in 2016 and they don’t like the result in 2020. In the old days, you didn’t have a president-elect until the Electoral College met; that’s when the title becomes official”

Excerpt of Sabato’s comment.

The Chairman of the Republican Party of Virginia, Rich Anderson, said the use of the term is no big deal to him but to be technically precise, nobody has the title of ‘president-elect’.

“Until an Electoral College winner has been determined there are a lot of moving pieces and a lot of unknowns, which is what we’re seeing play out now”.

Excerpt of Anderson’s comment.

The U.S Constitution only speaks on the availability of the person who has won the presidential election to take the oath of office. There is no indication when that person actually becomes president-elect.

The General Services Administration is tasked with formally recognising the president-elect and providing the funds and access to federal agencies that his team needs.

Conclusion

It is true there is a safe harbour deadline of December 8 in the U.S. presidential election as noted by the electoral college election timeline and other reports.

The term president-elect is, however, an unofficial term used to describe a candidate who has won the majority of electoral votes. Although it is not found in the U.S Constitution, it is in the 20th Amendment, ratified in 1933.

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