Who is the president if election results are unknown by January 20, 2021?

Article II, Section I of the U.S. Constitution states that a president is elected to serve a four-year term. The current presidential term officially ends on January 20, 2021. Even if the election results are not finalized by that date, President Donald Trump (R) will no longer be president, and Vice President Mike Pence (R) will no longer be vice president. What happens next would depend on several factors.

In one scenario, the results of the presidential election would be unknown because no candidate received a majority of the vote in the Electoral College. In that case, the Twelfth Amendment to the U.S. Constitution holds that the House of Representatives elects the president, and the Senate elects the vice president. If the House fails to elect a president by March 4, 2021, the Twelfth Amendment requires that the vice president assume the office of president.

In a second scenario, the question of whether a candidate has won the Electoral College is taken up in the courts, and the issue remains unresolved past January 20. The presidential line of succession, established in 3 U.S. Code § 19, part of the Presidential Succession Act of 1947, lays out who would assume the role should there be a vacancy in the offices of both president and vice president. The outcome depends on whether a new Congress has been sworn in by January 20.

If a new Congress has been sworn in, the next in line would be the speaker of the House of Representatives, currently Nancy Pelosi (D). If re-elected to both her seat and the speakership, she would serve as acting president until the election is decided. The Twentieth Amendment to the Constitution requires that each new Congress convene on January 3, unless the previous Congress passed a law that set a different date.

If a new Congress has not been sworn in by January 20, there would be no serving House. There would be a partial Senate, however, made up of the 65 senators whose seats were not up for election. After the speaker of the House, the next in line to serve as president is the president pro tempore of the Senate. In a partial Senate, Democrats would hold a majority with 35 seats and control the chamber. The most senior member of the majority party—Sen. Pat Leahy (D-Vt.) in this scenario—would become president pro tem and serve as acting president.

A third possibility is that a partial new Congress would be sworn in while the rest of the election results were being finalized. There is no precedent for this, and it is unclear how it would operate. Any of these situations would likely lead to court challenges.

The nearest the U.S. has ever come to being without a president on Inauguration Day was in 1876. In that year, several southern states had contested vote counts and sent multiple slates of electors. A special Electoral Commission set up by Congress decided the election three days before Inauguration Day. In more recent history, the 2000 presidential race came down to disputed results in Florida. That case went to the Supreme Court, which issued their ruling on December 12.


Information sourced from Ballotpedia.

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