President-elect of the United States
The President-elect of the United States is the person who has won the quadrennial presidential election in the United States, but who has not yet been inaugurated as President of the United States. President-elect is also the honorific title accorded to this individual.
The only constitutional provisions pertaining directly to the president-elect, address matters related to the election winner's availability to take the oath of office. Nowhere is there an unequivocal statement made of when the winner of the election actually becomes president-elect. Since the 1960s, U.S. federal law has empowered the General Services Administration Administrator to ascertain who the apparent election winner is, and to help facilitate the basic functioning of the president-elect's transition team. By convention, during the period between the election and the inauguration, the president-elect actively prepares to carry out the duties of the office of president and works with the outgoing (or lame duck) president to ensure a smooth handover of all presidential responsibilities.
Incumbent presidents who have won re-election for a second term are generally not referred to as president-elect, as they are already in office and are not waiting to become president. Likewise, if a vice president succeeds to the presidency by way of the president's death, resignation or removal (via impeachment) from office, that person does not hold the title of president-elect, as they would become president immediately. Conversely, a sitting vice president who is elected president does become president-elect.
Presidential election law overviewEdit
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Article II, Section 1, Clause 2 of the United States Constitution, along with the Twelfth and Twentieth Amendments directly address and govern the process for electing the nation's president. Presidential elections are further regulated by various federal and state laws.
Under federal law, the presidential electors, the members of the Electoral College, the body that directly elects the president, must be "appointed, in each state, on the Tuesday next after the first Monday in November, in every fourth year". Thus, all states appoint their electors on the same date, in November, once every four years. However, the manner of appointment of the electors is determined by the law of each State, subject to the restrictions stipulated by the Constitution.
Currently, in every state, an election by the people is the method employed for the choice of the members of the Electoral College. The Constitution, however, does not specify any procedure that states must follow in choosing electors. A state could, for instance, prescribe that they be elected by the state legislature, or even choice by the state's governor. The latter was the norm in early presidential elections prior the 1820s, no state has done so since the 1860s. Several states have enacted or proposed laws that would give their electoral votes to the winner of the national popular vote regardless of the result of their statewide vote, but these laws will not come into force unless and until states with a majority of the electoral votes collectively enact such laws, which as of 2018 has yet to occur.
On the Monday after the second Wednesday in December, the electors of each state meet in their respective state capitals (and the electors of the District of Columbia meet in the federal capital) and in those meetings the electors cast their votes for President and Vice President of the United States. At the conclusion of their meetings, the electors of each state and of the District of Columbia then execute a "certificate of vote" (in several original copies), declaring the vote count in each meeting. To each certificate of vote, a certificate of ascertainment is annexed. Each state's (and the District of Columbia's) certificate of ascertainment is the official document (usually signed by the governor of the state and/or by the state's secretary of state) that declares the names of the electors, certifying their appointment as members of the Electoral College. Given that in all states the electors are currently chosen by popular election, each certificate of ascertainment also declares the results of the popular vote that decided the appointment of the electors, although this information is not constitutionally required. The electors in each state and of the District of Columbia then send the certificates of vote, with the enclosed certificates of ascertainment, to the President of the U.S. Senate.
The electoral votes are counted in a joint session of Congress in early January (on January 6 as required by 3 U.S. Code, Chapter 1 or an alternative date set by statute) and if the ballots are accepted without objections, the presidential and vice-presidential candidates winning at least 270 electoral votes—a majority of the total number of electoral votes—are certified as having won the election by the incumbent Vice President, in their capacity as President of the Senate. If no presidential candidate reaches the 270-vote threshold, the election for the president would be decided by the House of Representatives in a run-off contingent election. Similarly, if no vice-presidential candidate reaches that threshold, the election for the vice president would be decided by the Senate.
Electoral College roleEdit
Although neither the Constitution nor any federal law requires electors to vote for the candidate who wins their state's popular vote, some states have enacted laws mandating that they vote for the state vote winner. The constitutionality of these laws have never been tested in the courts. Historically, there have only been a few instances of "faithless electors" casting their ballots for a candidate to whom they were not pledged, and such instances have never altered the final outcome of a presidential election.
U. S. Presidential elections are indirect elections, meaning that voters do not choose between the candidates directly, but rather elect the people who will. Due to this, the potential exists that, even if the nationwide popular vote is won by one candidate, another could win the electoral vote and the presidency. This situation occurred in the elections of 1876, 1888, 2000 and 2016.
Two congressional reports found that the president-elect is the eventual winner of the majority of electoral ballots cast in December. The Congressional Research Service (CRS) of the Library of Congress, in its 2004 report "Presidential and Vice Presidential Succession: Overview and Current Legislation," discussed the question of when candidates who have received a majority of electoral votes become president-elect. The report notes that the constitutional status of the president-elect is disputed:
Some commentators doubt whether an official president- and vice president-elect exist prior to the electoral votes being counted and announced by Congress on January 6, maintaining that this is a problematic contingency lacking clear constitutional or statutory direction. Others assert that once a majority of electoral votes has been cast for one ticket, then the recipients of these votes become the president- and vice president-elect, notwithstanding the fact that the electoral votes are not counted and certified until the following January 6.
The CRS report quotes the 1933 U.S. House committee report accompanying the Twentieth Amendment as endorsing the latter view:
It will be noted that the committee uses the term "president elect" in its generally accepted sense, as meaning the person who has received the majority of electoral votes, or the person who has been chosen by the House of Representatives in the event that the election is thrown into the House. It is immaterial whether or not the votes have been counted, for the person becomes the president-elect as soon as the votes are cast.
Both reports make clear that becoming president-elect is contingent upon winning a majority of the electoral votes cast.
Scholars have noted that the national committees of the Democratic and Republican parties have adopted rules for selecting replacement candidates in the event of a nominee's death, either before or after the general election. If the apparent winner of the general election dies before the Electoral College votes in December the electors would likely be expected to endorse whatever new nominee their national party selects as a replacement. The rules of both major parties stipulate that if the apparent winner dies under such circumstances and his or her running mate is still able to assume the presidency, then the running mate is to become the President-elect with the electors being directed to vote for the former Vice Presidential nominee for President. The party's National Committee, in consultation with the new President-elect, would then select a replacement to receive the erstwhile Vice Presidential nominee's electoral votes for Vice President.
If the apparent winner dies between the College's December vote and its counting in Congress in January, the Twelfth Amendment stipulates that all electoral ballots cast shall be counted, presumably even those for a dead candidate. The U.S. House committee reporting on the proposed Twentieth Amendment said the "Congress would have 'no discretion' [and] 'would declare that the deceased candidate had received a majority of the votes.'"
The words president elect appear four times in the Constitution, and they didn't appear until 1933, when the Twentieth Amendment, which contained a provision addressing the unavailability of the president elect to take the oath of office on Inauguration Day, was ratified. Section 3 provides that if there is no president-elect on January 20, or the president-elect "fails to qualify", the vice president-elect would become acting president on January 20 until there is a qualified president. The section also provides that if the president-elect dies before noon on January 20, the vice president-elect becomes president. In cases where there is no president-elect or vice president-elect, the amendment also gives the Congress the authority to declare an acting president until such time as there is a president or vice president. At this point the Presidential Succession Act of 1947 would apply, with the office of the Presidency going to the speaker of the House of Representatives, followed by the president pro tempore of the Senate and various Cabinet officers.
Horace Greeley is the only presidential candidate to win pledged electors in the general election and then die before the presidential inauguration - he secured 66 votes in 1872 and succumbed before the Electoral College met. Greeley had already clearly lost the election and most of his votes inconsequentially scattered to other candidates. The closest instance of there being no qualified person to take the presidential oath of office on Inauguration Day happened in 1877, when the disputed election between Rutherford B. Hayes and Samuel J. Tilden was decided and certified in Hayes' favor just three days before the inauguration (then March 4). It might have been a possibility on several other occasions as well. In January 1853, President-elect Franklin Pierce survived a train accident that killed his 11-year-old son. Four years later, President-elect James Buchanan battled a serious illness contracted at the National Hotel in Washington, D.C., as he planned his inauguration. Additionally, on February 15, 1933, just 23 days after the Twentieth Amendment went into effect, President-elect Franklin D. Roosevelt survived an assassination attempt in Miami, Florida. The amendment's provision moving inauguration day from March 4, to January 20, would not take effect until 1937, but its three provisions about a president-elect went into effect immediately. If the assassination attempt on Roosevelt had been successful then, pursuant to Section 3 of the amendment, Vice President-elect John Nance Garner would have been sworn in as president on Inauguration Day.
Since the widespread adoption of the telegraph in the mid-19th century, the de facto president-elect has been known beyond a reasonable doubt, with only a few exceptions, within a few hours of the polls closing on election day. As a result, incoming presidents gained valuable preparation time prior to assuming office.
Recent presidents-elect have assembled transition teams to prepare for a smooth transfer of power following the inauguration. Outgoing presidents have cooperated with the president-elect on important policy matters during the last two months of the president's term to ensure a smooth transition and continuity of operations that have significant national interests. Before the ratification of the Twentieth Amendment in 1933, which moved the start of the presidential term to January, the president-elect did not assume office until March, four months after the popular election.
Under the Presidential Transition Act of 1963 (P.L. 88-277), amended by the Presidential Transitions Effectiveness Act of 1998 (P.L. 100-398), the Presidential Transition Act of 2000 (P.L. 106-293), and the Pre-Election Presidential Transition Act of 2010 (P.L. 111-283), the President-Elect is entitled to request and receive certain privileges from the General Services Administration as he prepares to assume office.
Section 3 of the Presidential Transition Act of 1963 was enacted to help smooth transitions between incoming and outgoing presidential administrations. To that end, provisions such as office space, telecommunication services, transition staff members are allotted, upon request, to the President-Elect, though the Act grants the President-elect no official powers and makes no mention of an "Office of the President-Elect."
In 2008, President-elect Barack Obama gave numerous speeches and press conferences in front of a placard emblazoned with "Office of the President Elect" and used the same term on his website. British journalist Tony Allen-Mills disputed the office as "a bogus concoction that has no basis in the U.S. Constitution." President-elect Donald Trump did likewise on January 11, 2017.
The Presidential Transition Act of 1963 further authorizes the Administrator of the General Services Administration to certify, even before the December vote of the Electoral College, the apparent winner of the November general election as the president-elect for the purposes of receiving federal transition funding, office space and communications services prior to the beginning of the new administration on January 20.
The president-elect assumes office as the next president of the United States upon the expiration of the term of the previous officeholder at noon on January 20. This procedure has been the subject of many misinterpretations and urban legends, such as the myth of David Rice Atchison's one-day-long presidency, which is predicated upon false assumptions and a logical flaw. Taking the formal oath of office does not affect the automatic accession to and occupation of the office of the presidency, which, in the case of the president, proceeds, ipso facto, from the expiration of the predecessor's term and the immediate start of the new four-year term. The oath of office is necessary so that the president can "enter upon the execution" of their office, but they are already president from the start of their term.
The president-elect and vice president-elect receive mandatory protection from the United States Secret Service. Since the 1968 assassination of Robert F. Kennedy, major-party candidates also receive such protection during the election campaign.
List of presidents-electEdit
During the presidential transition period, the president-elect's running mate is known as the Vice President-elect. As with the title President-elect, it applies to the person determined by the GSA Administrator to be the apparent successful candidate for the office of Vice President after the general election.
If the Vice President-elect dies or resigns before the meeting of the Electoral College in December, the National Committee of the winning party would, in consultation with the president-elect, choose a replacement to receive the electoral votes of the Vice Presidential nominee in the same manner as would happen if the former Vice Presidential nominee had become President-elect due to the death of the apparent winner. Assuming the requisite number the electors agreed to vote for the replacement candidate, that person would then become the Vice President-elect. If such a vacancy were to occur after the electoral votes had been cast in the states, most authorities maintain that no replacement would be chosen and the new President (after taking office) would nominate a Vice President, per the provisions of the Twenty-fifth Amendment to the Constitution.
Before ratification of the 25th Amendment in 1967, the Constitution contained no provision for filling an intra-term vacancy in the vice presidency. As a result, when one occurred (and did 16 times), the office was left vacant until filled through the next ensuing election and inauguration. Since 1967, the Vice Presidency has been vacant twice, and a successor was nominated each time to fill the vacancy in accordance with the 25th Amendment. The first instance was in 1973, when Gerald Ford was nominated by President Richard Nixon to succeed Spiro Agnew, who had resigned. The second came in 1974, when Ford, who had succeeded to the presidency following Nixon's resignation, nominated Nelson Rockefeller to succeed him. During both vacancies, the nominee was called Vice President-designate, instead of Vice President-elect, as neither had been elected to the office. As a result of these events, the nation has had two more Vice Presidents than it has had Vice President-elects. While he is currently the 48th U.S. Vice President, Mike Pence was the 46th person to be Vice President-elect.
- Bomboy, Scott (January 6, 2017). "What constitutional duties are placed on the President Elect?". National Constitution Center. Retrieved January 15, 2017.
- "Presidential Transition Act of 1963 (Public Law 88-277)". General Services Administration. Retrieved May 17, 2016.
The terms "President-elect" and "Vice-President-elect" as used in this Act shall mean such persons as are the apparent successful candidates for the office of the President and Vice President, respectively, as ascertained by the Administrator following the general elections held to determine the electors of the President and Vice-President in accordance with title 3, United States code, sections 1 and 2.
- Thomas H. Neale. "Presidential and Vice Presidential Succession: Overview and Current Legislation" (PDF). Congressional Research Service. Retrieved April 21, 2012.
- U.S. Congress, House, Proposing an Amendment to the Constitution of the United States, report to accompany S.J. Res. 14, 72nd Cong., 1st sess., Rept. 345 (Washington, GPO:1932), p. 6.
- Longley, Lawrence D.; Neal R. Peirce (1999). The Electoral College Primer 2000. Yale University Press. ISBN 0-300-08036-0.
- "Presidential Transition Act of 1963". www.gsa.gov. Archived from the original on November 21, 2008. Retrieved October 19, 2016.
- "The Presidential Transitions Effectiveness Act of 1998". www.gsa.gov. Archived from the original on November 21, 2008. Retrieved October 19, 2016.
- "Presidential Transition Act of 2000". www.gsa.gov. Archived from the original on November 21, 2008. Retrieved October 19, 2016.
- "S. 2705". www.senate.gov. Archived from the original on August 3, 2008. Retrieved October 30, 2008.
- "Pre-Election Presidential Transition Act of 2010". Retrieved October 19, 2016.
- Stanley, Alessandra (November 8, 2008). "Donning the Presidential Mantle to Brave a Storm of Questions on the Economy". The New York Times. Retrieved May 20, 2010.
- "Office of the President Elect". Archived from the original on November 8, 2008. Retrieved December 2, 2016.
- AllenMills, Tony (November 30, 2008). "In with a bang Obama dismays the faithful". The Times. London. Retrieved May 20, 2010.
- Houpt, Simon (January 11, 2017). "Trump's answer to press seeking substantive response: 'I won'". The Globe and Mail. Retrieved January 12, 2017.
- In November 2000, the GSA administrator did not name a president-elect until the legal disputes over vote counting in Florida were resolved. Schrader, Esther (November 28, 2000). "GSA Denies Bush Transition Aid, Citing Legal Battle". Los Angeles Times. Retrieved November 16, 2008.
It started early Monday, when the Bush team asked for access to the taxpayer-funded transition offices that are to be used by the president-elect. The General Services Administration refused, explaining it was best to wait until the legal challenges in Florida had run their course.
- McCaleb, Ian Christopher (December 13, 2000). "Bush, now president-elect, signals will to bridge partisan gaps". CNN.com. Retrieved February 10, 2009.
- Coleman, Kevin J.; Cantor, Joseph E.; Neale, Thomas H. (April 17, 2000). "Presidential Elections in the United States: A Primer" (PDF). CRS Report for Congress. Congressional Research Service - Library of Congress. p. 48. Retrieved December 24, 2016.
- Nessen,, Ron (Reporter); Jamieson, Bob (Reporter); Brokaw, Tom (Anchor) (October 13, 1973). "Profile of Vice President-Designate Gerald Ford". NBC Nightly News. NBC. Retrieved December 22, 2016.
- "Nelson Rockefeller, Vice President-Designate". Gerald R. Ford Presidential Library & Museum. Retrieved December 22, 2016.
- Presidential Transition, GSA
- President Eisenhower Writes President-Elect John F. Kennedy a Chilly Letter about Staffing, 1960 Shapell Manuscript Foundation
- President-Elect Garfield Can't Afford Transportation
- Office of the President-Elect (President-elect Barack Obama) at the Wayback Machine (archived December 29, 2008)