But there wasn’t still plenty of time. That’s not just in the sense that, over the past month, he’s been unable to provide any evidence to bolster his claims of fraud. It isn’t just in the sense that races had already been called in each state, showing that President-elect Joe Biden would surpass the required number of electoral votes. And it wasn’t just that states were beginning to certify those results, locking Trump’s losses in cement.
As he spoke, five of the six states Trump has repeatedly focused on with his unfounded claims of fraud — Arizona, Georgia, Michigan, Pennsylvania and Wisconsin — had not only certified their results but also transmitted formal certificates of ascertainment to the National Archives with the seal of the state’s governor. And that, by itself, essentially closes the door.
To understand why, you have to understand a bit about the process by which the United States selects a president. It’s fairly opaque in large part because the country eventually put the emphasis on the will of the voters instead of the electoral college. How those electors voted tracked with how the voters voted, so the process by which those electors were formalized moved to the background.
With Trump attempting to somehow subvert the will of the voters, though, it demands more attention.
In about two weeks, the electors from each state will meet to formally cast their votes for the president and vice president. But that’s only half of what ends up being transmitted to Washington. Those votes are paired with what are called “certificates of ascertainment,” formal declarations from each state of which slate of electors should be considered valid.
Here, for example, is the second page of Wisconsin’s.
It bears both the seal of the state and the signatures of the governor and secretary of state. It lists the specific people who will serve as electors — all of whom are pledged to Biden, as the first page delineates.
These documents look different from state to state, varying in form and content. But each one that has been submitted contains two important bits of information: who won the state and whom the electors will therefore be.
Again, these are critical documents. As the National Archives’ explainer of the process puts it, “a set of electoral votes consists of one Certificate of Ascertainment and one Certificate of Vote.” The certificate of vote is the documentation of how the electors voted. The certificate of ascertainment is what is signed by the state validating the electors. It’s a package.
But it’s important, too, because in the event of competing slates of electors, the electors who have the stamp of approval from the state’s executive are the ones whose votes will count. We’re getting into the weeds a bit here, but it’s worth summarizing our past, lengthier looks at this.
In short, it is possible that both Biden and Trump electors could meet in their states on Dec. 14 to cast their votes for president. Both sets of electors could transmit those votes to Washington. The House and Senate, when opening the votes on Jan. 6 — the final step in determining the winner — would then have two slates of electors from, say, Wisconsin. The House and Senate would vote on which slate to accept. Given the composition of each body, it’s possible that the House might pick the Biden electors and the Senate the Trump ones.
If things got that far (which isn’t likely), the Electoral Count Act of 1887 has a tiebreaker: “The votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof” are the ones that count. In other words, if there’s such a split on Wisconsin, it’s the Biden electors who are supposed to win.
As it stands, the vote has been certified in about half the states. There are a lot more electoral votes for Biden in states that haven’t certified their votes than there are for Trump, but there’s no real question that the largest — California, Illinois, New Jersey and New York — will certify for Biden. Biden has a lead among the states that have already transmitted their certificates of ascertainment to D.C.
But, again, those states include most of the ones that Trump is currently fighting to overturn. He wants to claim he won Arizona — but the certificate of ascertainment already indicates under the governor’s signature and with the state seal that the electors go to Biden. Same with Pennsylvania and Michigan and Georgia. Biden not only won those states, he has the backup documentation he needs in case Trump really starts to take things sideways.
It’s over. It’s been over for nearly a month, of course, but now it’s over over. Biden is going to get the electoral votes he needs to be president, and even if there’s a dispute in Washington when those votes are counted, his votes will be counted in the states where Trump has been most fervent about alleging fraud.
None of this will matter to the president, given that he is by now approaching the contest from outside the realm of reality. But it will matter to Congress and to the country.