When Does the Winner of the Election Become the President-elect?

By Commonplace Fun Facts on November 12, 2020 • ( 4 Comments )

The title “President-elect” is not found in the U.S. Constitution. It is a designation given to the person who has officially been elected to office but has not yet assumed the office. The recent Presidential election has caused a lot of people to ask when it is appropriate for the title to be used.

A peculiarity of the U.S. Presidential elections is that they aren’t definitive. This is not a commentary on close or disputed elections, such as those of 1876, 2000, or 2020. It is recognition of the fact that the President of the United States is not chosen by popular vote.

Article II, Section 1 of the Constitution provides that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress…. The Congress may determine the Time of [choosing] the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”

In other words, the day known as Election Day is not really the day the president is elected. It is the day Electors are selected in the manner determined by the legislatures of each of the 50 states and the District of Columbia. These Electors constitute the Electoral College.

Most of the time, the outcome of Election Day makes the ultimate outcome in the Electoral College all but certain. It isn’t until the Electoral College meets and formally elects the next President that he or she has actually won the election that matters.

Congress set the Monday after the second Wednesday in December of a presidential election year as the date for the Electoral College to meet. (3 U.S.C. §7) Perhaps anticipating the remote learning that college students of 2020 would experience, the statute that convenes the Electoral College does not require all the Electors to gather in one place. The Electors of each state vote in the place that the legislature for that state has selected.

For 2020, the date for the Electors to vote is December 14. Even if a candidate receives the requisite 270 votes, claiming the title “President-elect” may be a bit too hasty.

As already mentioned, the Electors do not meet in one place. They cast their votes in each of the states and the District of Columbia. From there, the votes are sent to Congress to be officially counted. On January 6 at 1:00 p.m., both houses of Congress meet in joint session to receive and count the votes of the Electoral College. (3 U.S. Code § 15) Once Congress has confirmed that a candidate has received at least 270 electoral votes, only then does that person become “President-elect.” With Inauguration Day coming up just fourteen days later, the President-elect probably shouldn’t waste a lot of money on stationery or business cards. On January 20 at noon, the “elect” part gets shaved off the title.

So what should the apparent winner of a Presidential election be called between Election Day and January 6? Technically, the title is “President-presumptive.”

Any number of things can happen between Election Day and Inauguration Day. We anticipate some upcoming articles about these possibilities in the days ahead. One incident already documented here at Commonplace Fun Facts was the embarrassing incident when a candidate went to bed, thinking he had won the election. His staff had already started calling him “the President,” only to have a reporter call the next morning to say, “Tell him he isn’t the President.”

Using the title “President-presumptive” may seem like a mouthful. As demonstrated in the scenario described above, however, it may be a wise practice. After all, claiming to be President-elect prematurely is, in actuality, rather presumptive.