The Record: What makes an election final? When can we say this election is officially over?

Jack Beermann: The election is truly over when the president of the Senate, the vice president of the United States, opens the Certificates of Vote from the states and the electoral votes are tallied before a joint session of Congress. That happens on January 6.

Members of Congress have an opportunity at that point to object to the votes being counted. For example, during the 1876 election, there were two different people claiming to be governor of Louisiana, and I think all together four certificates were sent from that state. Once those objections are resolved, the election is absolutely final.

The Record: Is it likely that objections will be made this time?

Jack Beermann: It’s very unlikely, because Congress has the power to decide the objections by vote, and it’s a separate vote in each house of Congress. So, you would need a majority in the House and a majority in the Senate to sustain any objection. And with the Senate being held by Republicans and the House being Democratic, you would never get a majority for any objection.

The Record: And how should the transition work?

Jack Beermann: Ideally, the transition would have begun within a few days of the election. But now that the head of the General Services Administration (GSA) has ascertained that Joe Biden won the election, they can provide Biden’s team with transition aid so that they could start doing background checks to hiring people, getting national security briefings, and accessing to information so they can prepare their administration to hit the ground running.

There’s a pretty organized process under the Presidential Transition Act of 1963 where each agency has a designated liaison to the incoming president. And those liaisons were all chosen in the summer, as they’re legally required to do.

I should note that they could conceivably give Biden transition access and then just revoke it if the election turns out the other way. Giving him the keys to the transition office doesn’t have any legal effect on who becomes president. That happens through the course of the states certifying their electoral votes and then Congress opening them in January.

The Record: What impacts do the recounts, legal challenges, and other obstructions have on that process?

Jack Beermann: If there were truly valid disputes over the results of the election, then you can have an even longer delay. In 2000, the Clinton administration didn’t recognize George W. Bush as president-elect until mid-December, after the Supreme Court had ruled in his favor and Al Gore had conceded.

There can be negative effects when the transition is delayed, in terms of getting people in place. National security, in particular, suffers. The 911 Commission reported that the delay in the transition hampered national security efforts and that the Bush administration may have been better prepared for those attacks had it not happened.

That’s why it’s alarming to see the Secretary of State proclaim that there will be a smooth transition into a second Trump administration. It has potentially had disastrous effects, because it leaves our allies and our adversaries very confused about what’s going on. That’s just not a healthy situation for international relations, which has always been one of the most delicate areas during a transition. Even though the current administration still speaks for the government, it’s a tradition not to put any obstacles in the way of how an incoming administration functions in diplomacy. But what Pompeo did was throw a big obstacle in there. And that is worrying.

The Record: Now that transition has formally begun, what kinds of midnight regulations might Trump look to pass as he leaves office?

Jack Beermann: Traditionally, presidents have really piled it on right at the end of their administrations, especially when a new administration of a different party is taking over. The problem is that this administration has been relatively slow in getting out actual regulations. They’re really good at getting out presidential directives—executive orders and such—but executive orders and things like that can be just revoked the day that Joe Biden becomes president.

In terms of regulations, you can imagine a whole host of rules involving workers’ rights, environmental law, and abortion, all hot political issues. Those are the kinds of things that tend to happen at the very end of administrations. Things they don’t want to put on the record before the election. But it remains to be seen whether they have the ability to get things out. Because the one thing they have shown is they’re not good at following all of the rules. They’ve been losing court cases that challenge their regulations at a record pace, way more than any other administration, so it’s not clear how much they’ll actually be able to accomplish.

When I studied regulations from previous transitions, I found that while there were plenty of controversial things stuck in there, the vast majority of them were routine and not controversial. It’s stuff that got delayed earlier and now people in the agencies are working to deadlines. Like many of us, you just don’t get stuff done until there’s a concrete deadline staring you in the face. Of course, this administration is a little different because they’ve been so extreme with what they’ve been doing and it’s hard to predict whether they’ll follow the model of other administrations.