Ballot Bulletin: Thirty-seven states, D.C. certify their election results

Ballot Bulletin by Ballotpedia

As of Dec. 2, 37 states and the District of Columbia have certified their election results. What does this mean, and how does it relate to the finalization of the presidential election? We tackle those questions in this week’s edition. 

What it means for election results to be certified 

The election results states and localities report after polls close on Election Day are preliminary returns. These initial counts are not the official results of the election. First, election officials at the local and state levels must canvass the returns to verify that each ballot cast in the election has been correctly counted. When the canvass is completed, officials must certify, or make official, the results of the election. 

Canvassing and certification are interrelated processes, and the terms are sometimes used interchangeably. We are focusing on the certification process specifically. 

States that have certified their results

To date, 37 states and the District of Columbia have certified their election results. These states are shaded blue on the map below.

These states have a total of 316 Electoral College electors, 148 of whom are pledged to President-elect Joe Biden (D). The remainder (168) are pledged to President Donald Trump (R).

What comes next? 

The following states will certify their results in the next two weeks. Certification deadlines, where available, are provided (as are Electoral College votes and projected winners):  

  • California: Dec. 11 (55; Biden)
  • Connecticut: Dec. 3 (7; Biden)
  • Hawaii: Not specified (4; Biden)
  • Illinois: Dec. 4 (20; Biden)
  • Maryland: Dec. 8 (10; Biden)
  • Missouri: Dec. 8 (10; Trump)
  • New Jersey: Dec. 8 (14; Biden)
  • New York: Dec. 7 (29; Biden)
  • Oregon: Dec. 3 (7; Biden)
  • Tennessee: Not specified (11; Trump)
  • Texas: Dec. 3 (38; Trump)
  • Washington:Dec. 3 (12; Biden)
  • West Virginia: Dec. 3 (5; Trump)

Federal law requires states to appoint their slates of Electoral College electors and settle any disputes related to the presidential election by Dec. 8. This is referred to as the safe-harbor provision

The 538 members of the Electoral College will meet in their respective state capitals on Dec. 14 to cast their votes. On Jan. 6, 2021, the newly elected Congress convenes in a joint session to count the electoral votes. 

Members of Congress can object to the results. If both a House and Senate member make a written objection to a state’s results, Congress will debate and vote on the objection’s merit. Electoral votes can be excluded only if both chambers vote to accept the objection. If a ticket receives 270 electoral votes(a majority of the 538 members of the Electoral College)the vice president (acting as Senate president) formally declares that individual winner of the election. 

For more information about these key dates and deadlines, see this article

Litigation update: Donald J. Trump for President, Inc. v. Boockvar

On Nov. 27, a three-judge panel of the U.S. Court of Appeals for the Third Circuit unanimously declined to postpone certification of the state’s election results, rejecting the Trump campaign’s claims of widespread voting irregularities.

What’s at issue, and how the lower court ruled 

On Nov. 9, the Trump campaign sued Secretary of the Commonwealth Kathy Boockvar (D) and several county-level officials, alleging multiple violations of the state election code and the U.S. Constitution. In their complaint, attorneys for the campaign said:

Plaintiffs seek an emergency order prohibiting Defendants from certifying the results of the General Election. In the alternative, Plaintiffs seek an emergency order prohibiting Defendants from certifying any results from the General Election that included the tabulation of absentee and mail-in ballots which do not comply with the Election Code, including, without limitation, the tabulation of absentee and mail-in ballots Trump Campaign’s watchers were prevented from observing or based on the tabulation of invalidly cast absentee and mail-in ballots which (i) lack a secrecy envelope, or contain on that envelope any text, mark, or symbol which reveals the elector’s identity, political affiliation, or candidate preference, (ii) do not include on the outside envelope a completed declaration that is dated and signed by the elector, or (iii) are delivered in-person by third parties for non-disabled voters. Lastly and in addition to the alternative requests for relief, Plaintiffs seek a permanent injunction requiring the County Election Boards to invalidate ballots cast by voters who were notified and given an opportunity to cure their invalidly cast mail-in ballot.

U.S. District Court Judge Matthew Brann heard oral arguments on Nov. 17. On Nov. 21, Brann dismissed the lawsuit, finding that the Trump campaign had presented “strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence.”

On Nov. 22, the Trump campaign appealed Brann’s decision to the Third Circuit, asking that the court postpone the certification of election results pending further court proceedings. The Third Circuit set an expedited schedule for considering the appeal.

How the court ruled 

On Nov. 27, a three-judge panel of the Third Circuit unanimously denied the Trump campaign’s request. Judge Stephanos Bibas (a Trump appointee) wrote for the court:

The campaign’s claims have no merit. The number of ballots it specifically challenges is far smaller than the roughly 81,000-vote margin of victory. And it never claims fraud or that any votes were cast by illegal voters. Plus, tossing out millions of mail-in ballots would be drastic and unprecedented, disenfranchising a huge swath of the electorate and upsetting all down-ballot races too. That remedy would be grossly disproportionate to the procedural challenges raised. So we deny the motion for an injunction pending appeal.

Judges Brooks Smith and Michael Chagares, both George W. Bush (R) appointees,  joined Bibas’ opinion. 

What comes next? 
Attorneys for the Trump campaign said they intended to appeal the Third Circuit’s decision to the U.S. Supreme Court. A formal filing had not been made as of Dec. 2.