The next step in the Electoral College process is the meeting of the electors, who are required by law to convene on the first Monday (Dec. 14 this year) after the second Wednesday in December. The next key date will be Jan. 6, when a joint session of Congress convenes, with Vice President Mike Pence presiding, to certify results.

Creating the Electoral College

The term “Electoral College” does not appear in the Constitution. Article II of the Constitution and the 12th Amendment refer to “electors,” but not to the “Electoral College.”

Since the election process we use is part of the original design of the U.S. Constitution, it would be necessary to pass a Constitutional amendment to change the system, according to the National Archives.

The Electoral Count Act of 1887 came as a reaction to the presidential election of 1876, in which Democrat Samuel Tilden won the popular vote, but lost the presidency to Republican Rutherford B. Hayes because of contested election results coming from three Southern states under the control of Reconstruction governments.

Congress had no rules in place to deal with such a scenario, so it created an ad hoc commission to decide the presidency and then passed the 1887 law to avoid similar situations in the future.

If a state finalizes its results six days before the vote, according to the Electoral Count Act, those results qualify for “safe harbor” status — meaning Congress must treat them as “conclusive” results, even if, for example, a state’s legislature sends in a competing set of results.

Electoral vote history

How much electoral clout each state has had and what party its electors voted for, organized by mostly Republican on top to mostly Democratic on bottom.

2020 differencesThe Electoral College will vote Monday and President-elect Joe Biden is expected to have enough to win.

The Trump administration has tried to challenge results in courts and has not been successful. The most recent case was filed to the Supreme Court on Tuesday by Texas Attorney General Ken Paxton against Michigan, Georgia, Wisconsin and Pennsylvania. It argues that electors should not cast their votes because the states unconstitutionally changed their voting processes to allow for mail-in voting.

The attorneys general of 17 states filed an amicus brief Wednesday. Arizona Attorney General Mark Brnovich (R) filed a separate brief in support of the case.

Also Wednesday, Trump filed a motion to intervene in the case, and reportedly asked Texas Sen. Ted Cruz (R) to argue the case before the high court.

Thursday, 106 Republicans in the House signed an amicus brief supporting the Texas lawsuit.

Friday, the Supreme Court denied Texas’ effort to nullify the presidential elections in Pennsylvania, Michigan, Georgia and Wisconsin. The high court needed five of nine justices to agree to review the case for it to have moved forward.

“The State of Texas’s motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution,” the Supreme Court’s order reads. “Texas has not demonstrated a judicially cognizable interest in the manner in which another state conducts its elections. All other pending motions are dismissed as moot.”

The justices decided on the last of these four options:

  • Agree to hear the case and promptly dismissed it.
  • Rule in favor of Texas.
  • Have requested oral arguments before ruling.
  • Decline to hear it outright.

One of the closest of races

Biden won Pennsylvania by just 1.2 percentage points, Wisconsin by six-tenths of a percentage point, Arizona by about a third of a percentage point and Georgia by a quarter of a percentage point. In those four states combined, Biden beat incumbent President Donald Trump by fewer than 125,000 votes out of 18.5 million total votes cast.

Sources: The Associated Press, The Wall Street Journal, Pew Research Center, The National Archives, The Office of the Federal Register