Since I wrote the article where I wanted to publicly predict a close 2020 presidential election I've had a number of conversations where it has become exceedingly clear that most people who don't live in the USA are unaware of how the election system works there. As of the time of this post the election process is not yet complete, despite the media calling Joe Biden as the winner. Here's a video that has a good summary of what has to happen for a winner to be declared and what might happen were processes to break down:

https://youtu.be/WZWRhLW7Y8w

What I like the most about this video is the attention given to the importance of conventions in the election process. Specifically the convention has been such that when a candidate makes a concession speech it de facto marks the end of the election although even in those cases the procedural steps afterwards still occur. The system has a well defined process that requires a number of steps before the election is complete even if many of those steps are usually just "rubber stamp" steps.

I remember clearly the Bush vs Gore election in 2000 because of the controversy and the lawsuits that followed afterwards which eventually culminated in the Supreme court case Bush v. Gore. There was a substantial delay from all this, but after the Supreme Court made its ruling Gore made a concession speech. This concession speech is very much in line with convention as it explicitly calls for a peaceful and united transition to the new government invoking the ideas of patriotism being the more important factor for the good of the country. It's also notable for his explicit acceptance of the Supreme Court ruling despite his disagreement with it.

There's a foreshadowing in this speech of the problems that might occur in the future if trust in the electoral system is reduced. It's worth noting Gore's concession speech occurred over a month after the polling day, we still haven't had that much time pass in this election. Now that we are in 2020 we now seeing a situation where a concession speech might not happen at all. So what is the process if there's no concession made by a candidate? If the convention isn't followed the constitutionally defined process will get a lot more important.

The USA presidential election process

As you may be aware the president of the USA is not directly elected by the popular vote. The indirect nature of the USA presidential election process is something that surprises a lot of people. This is why in 2016 Hillary Clinton was not elected as the president despite winning the popular vote.

What happens in November (typically) is that the general public vote for the "electors" that will go to the United States electoral college who in turn vote for the president. It is the electoral college that then votes to choose the president. If a presidential candidate gets a majority of votes, the 270 number that you may have heard recently, then the President is chosen.

The electoral college usually conducts the vote that determines the president some time in December. The 2000 presidential election saw controversy in Florida due to a close race and a large number of invalid votes due to deficiencies in the voting machines used, this "hanging chads" controversy led to a vote recount along with lawsuits and delayed the election proceedings by a bit over a month¹. The electoral college candidates pledge to vote for a candidate but there is no rule that forces them to vote for a specific candidate. When an elector votes for someone other than who was pledged they are known as a faithless elector. It's important to note that this isn't some technicality that never happens in practice, in the last election in 2016 seven electors voted for someone other than their party's candidate. Additionally an elector might abstain from voting for anyone as happened in 2000. With the enormous amount of bad will seen during the 2020 presidential election these sorts of issues could resurface again, considering the context were the president to be decided by the actions of faithless electors it could be explosive.

The laws governing the conduct of the electors are governed on a state by state basis. As of the writing of this article only 33 of the states have laws against faithless electors, however many of these states have no process for enforcing those laws. Only a small number of states like Michigan have explicit laws that void the vote of a faithless elector. But in other states a faithless elector might be subject to a fine or some sort of punishment however their vote may still stand. This hints at something that's very common in the process, many of the laws regarding the presidential election are actually up to the states. Once again this is a situation where quite a lot of it comes down to conventions being followed.

If you are interested in knowing if these lawsuits could change the election you might find this video interesting: https://www.youtube.com/watch?v=ha7iWECm_8E

What happens if the electoral college votes do not form a 270 vote majority opinion as to who should be president? This situation is known as a contingent election. In this case the house of representatives chooses the president, but this vote is done on a state by state basis not a house seats basis. The last time this happened for a presidential election was almost two centuries ago in the 1824 election.

If you want to know more about the details governing the election process see this: https://www.archives.gov/electoral-college/provisions

Why is the election system like this?

The constitution of the USA has been around for over 200 years now and you have to think back to how things were at the time of the writing of the constitution to understand why things are the way they are.

Consider for a moment the changes in the world since 1789 when the US constitution came into force. A lot of the presidential elections system is a historical artifact of a previous time and can only be fully understood when you consider some of the historical context. Specifically the framers of the USA constitution specifically did not want the president to be chosen directly by the people. They were suspicious of direct democracy and therefore did not want the choice of the president to be made this way. This is why the electoral college system exists at all, the idea was that by having a more experienced and wise group to choose the president it would be an additional safeguard to the system. The framers of the constitution foremost wanted to ensure liberty and had a distrust of popular rule, especially mob rule, as they saw this as having potential to erode liberty and the constitution. This explicit rejection of direct democracy is a bit more jarring now that a few centuries have gone by and but it is why the system is the way it is now.