Inauguration Day marks one of the most serious rituals in American democracy: the peaceful transfer of power. This year, the ritual is shadowed by divisions in our country and the ongoing pandemic. During this critical week, educators have the opportunity to help students understand why this ritual matters and what to expect as a new president takes office.
Election analyst and law professor Rick Hasen offers his expert insight into elections and the presidential inauguration.
Take a listen to what he has to say:
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About the author:
Rick Hasen is an election law analyst, author, and professor of law and political science at University of California, Irvine. You can find more of his expertise online at https://electionlawblog.org/, check out his book Election Meltdown, or learn about his academic work at UCI School of Law.
At GoGuardian, one of our core values is debate, then decide, a value that’s rooted in the same rule of law that shapes American democracy. We know that both educators and students will be discussing these significant events, and we hope that this information can support conversations in your classroom.
WHAT HAPPENS ON INAUGURATION DAY
Exactly at noon on January 20th, the Chief Justice of the United States will give the oath of office to Joe Biden. And that will be the moment that he formerly becomes the president.
I'm Rick Hasen. I'm a professor specializing in election law at UC Irvine School of Law. I've been studying and writing about election law for 25 years.
Normally, you have a number of public celebrations and balls and all kinds of festivities. Many of those were already put on hold, not for security concerns, but because of the pandemic. So already, that was going to be a scaled down, in-person meeting. Now, normally what happens well before that time is that the outgoing President and the incoming President-elect have teams that work on the transition. Some of that work was delayed. Some of that work eventually was allowed to go forward, but there has been some lag in all of this.
In the meantime, over the last few weeks, President-elect Biden has started getting daily presidential briefings about intelligence matters. He and his family will formally move into the White House on January 20th. Ordinarily the procedure would be that the outgoing President and the incoming President would meet together before the inauguration. They would have kind of an exchange of pleasantries. They would come over together, really symbolizing the peaceful transition of power. The business of running the country will immediately fall into then president Biden's lap. He will be given the nuclear codes. He will be given the role of Commander-in-Chief and all of the things that come with being the President of the United States.
ELECTION PROCESS 101
The process for electing the President is different than any other election because it's a national election. It's the only election we have on a nationwide scale. And we don't do it directly. We don't have everyone vote and whoever gets the most votes is the winner. Instead, we use the Electoral College. So every state is assigned a certain number of Electoral College votes, which is equal to the number of members of Congress that the state has, plus two senators.
So every state and the District of Columbia, which by constitutional amendment gets to vote in the electoral college as well, has at least three votes; because every state has two senators and at least one representative. The election is conducted state by state. There's a national election day, which this time around was November 3rd. That's set by a formula in the Constitution and in federal statutes. And then there are a series of dates that come after that. Essentially states have five weeks to resolve any conflicts over how the votes are counted. Then they're given an extra week before the electors actually meet.
There are people that will be assigned to act as electors. If you're in California and it's got over 50 electoral votes, there's going to be electors equal to the number of electoral votes. Once the votes are certified by the governor, those electors end up meeting. This year, they met on December 14th—they met in their respective capitals. The results of elections were then sent into the National Archives, and they were opened up by Congress on January 6th. We did have an interruption. There was civil disturbance at the Capitol, which delayed the finality of that counting. But by the morning of January 7th, Congress had confirmed that Joe Biden was the President-elect and Kamala Harris was the Vice President-elect. And we moved to the inauguration, which happens on January 20th.
THE POST-ELECTION PROCESS: COUNTING THE VOTES
Normally what happens is we have a pretty clear winner on election night. It's not an official result because it takes weeks for results to be officially tabulated. Sometimes you have a really close election. You could think back to the 2000 election, which led to the dispute between Bush and Gore, that made it all the way to the Supreme Court. That was an election where the Electoral College vote winner came down to one state, the state of Florida. And in the state of Florida, it was fewer than 2000 votes on election night that separated the two candidates. And eventually it came down to a 537 vote margin out of about 6 million votes cast. So sometimes we have a delay just because the election is so close that we have to spend time counting every vote.
In a more typical election, the election is not all that close. And the Electoral College and news organizations make unofficial calls of the election results. And, as soon as those calls are made, it's typical that the candidate that is found to be the loser will concede the election and will say, “I lost, congratulations to my opponent.” And everyone will act as though the election is over. Even though officially, it will still be weeks more before all of the official vote counting and certification takes place.
What was unusual this time around was, first of all, because of the pandemic, it took longer to count votes. So news organizations, most of them, were not willing to call the race for Biden until the Saturday after election day, about five days after election day. And then what was unusual was that the President, who was running against Joe Biden—he did not concede the race. That is highly unusual. We can think back to 2004 when John Kerry, who was running against George W. Bush, who was the incumbent at the time, didn't concede the night of the election because it looked like Ohio was close. As soon as Ohio, it was clear that there was no way to litigate the results there, Kerry did concede.
THE CONTENTIOUS ELECTIONS OF 1876
Among the most famous elections that was not declared on election night was the election of 1876. And of course, going back in time, elections were not declared on election night because we didn't have modern technology to know what the results were. Part of the reason that this post-election process is so dragged out is because there was not modern communication. It took a while for votes to be counted and for those results to be sent to state capitals and for state capitals to get those results to Congress. So that's why you had this very long period. In fact, we used to have the inauguration of presidents in March because it took so long to do everything.
Back in 1876, there were disputes as to who had won in a number of states. Rather than some states sending in one slate of presidential electors, some states sent in multiple slates of presidential lectures, and there was disagreement between the parties as to who had won the election. Eventually there was a commission appointed, headed by the Chief Justice of the Supreme Court, and it was a political compromise. The political compromise ended up with one candidate being declared the winner, but the agreement that troops that had been kept in the South to put down the insurrection led to the Civil War, that those trips were going to be withdrawn.
We ended the period of Reconstruction and moved into a period where there was about a hundred years of repression of African American voting in the South. And it was not until the 1965 Voting Rights Act that the resolution of the disputed election of 1876's consequences were eventually reversed.
THE PEACEFUL TRANSFER OF POWER IS ESSENTIAL TO DEMOCRACY
It's kind of an unwritten idea in the United States, at least until this year, that we would have peaceful transitions of power. You can go back to 2008 when George W. Bush was finishing his second term as President, having defeated Al Gore very narrowly in Florida and then having defeated John Kerry in the 2004 election. When Bush was done being an office, he was very gracious in transferring power to Barack Obama. We went from a conservative Republican to a liberal Democrat. We just took it for granted because in democracy, you hold a fair election. And the winner is announced, the loser concedes. In 2008, that was John McCain. And he quickly conceded when he lost the election to Barack Obama, and power seamlessly transferred.
So it's essential to a democracy that you hold regular and fair elections, that you hold them on time, that the loser concedes the election after any bonafide disputes are resolved. And that power is transferred. You know, if you think about what makes an election work, it's that the losers believed that the election was conducted in a mostly fair way. They accept the results, maybe grumbling, and they agree to fight another day. And so we're at a point where that's not happening, and that's in part because of widespread sharing of disinformation about whether or not the election was fairly conducted.
THE IMPACT OF DISINFORMATION ON DEMOCRACY
We face a flood of disinformation, especially on social media, but also on some cable news networks and things like that. I would look to reliable sources of information, those that have proven in the past to have a good track record. I think of PBS and NPR, the Public Broadcasting System on TV and National Public Radio, as two very good sources of fair information.
It was interesting that, in the period right after the election was over, when the President was sharing a lot of disinformation about elections and election returns, Facebook tweaked its algorithm. Rather than presenting what appear to be news stories from potentially disreputable sources, the algorithm would have included information from sources that people had relied on in the past. Facebook switched so that it was presenting more information from reliable sources like NPR, like PBS. So I think that that was a recognition, an implicit one by Facebook, that there are more reliable sources of information. If you see something on social media and it seems too good to be true, it lines up with exactly what you expect things to be, and it's surprising; before you share that, maybe make sure that it is actually a verified source of information.
THE IMPORTANCE OF SHARING FACTS V. OPINION
It's really tough in these times to talk about what's going on in the political arena, because we're in such unprecedented times and because we're such a polarized society. I think it's important to present information factually; better to offer your facts than your opinions. At the same time, I think one should not hide the fact that we are in an unprecedented time. It's a matter of fact, for example, that President Trump has not conceded the election and that that is highly unusual. It's also a matter of fact that the claims of widespread voter fraud that he's made are unsubstantiated and have been rejected by courts, by investigations, by elected officials, by journalistic investigations.
I think presenting the facts and explaining how it is that our democracy is supposed to work, and what's aberrational this time, is the best way to approach these things—while recognizing that people have different points of view as to who should have won or lost the election. And just like in 2016, there were tens of millions of Americans who voted for the losing candidate, Hillary Clinton, and who were disappointed by that result. There are tens of millions of Americans who will be disappointed and are disappointed by the fact that President Trump has lost the election this time. And anyone who's speaking to a group needs to recognize that some people who are going to be learning or in the audience are going to have different political views than the person who's presenting the information to the audience.
UNITY, HEALING, AND HOPE FOR DEMOCRACY
This Inauguration Day is going to look different. I hope that it is a moment that we can have greater unity and some healing of the country, because it has been a very difficult time. And I hope that most Americans are going to be ready to embrace what I hope will remain to be a peaceful transition of power and that we'll be able to return to a more normal level of politics in the United States, in the near future.