The election is over. What’s supposed to happen next for Congress?

WASHINGTON — Voting ended Tuesday in this year’s midterm elections, leaving officials and volunteers counting tens of millions of ballots to determine which U.S. House and Senate candidates will take the oath of office in January.

The post-election process includes numerous steps and varying deadlines for when ballots have to be certified, since each state has different laws governing not only what happens on Election Day but what happens afterward.

Once local and state election officials wrap up their work, the process moves to Congress, which has its own rules and procedures. The Constitution also gives the House and Senate final say over whether to seat someone.

Here’s a look at what’s next and where issues could arise, aside from lawsuits that may be filed or already in progress.

When will there be official results? 

Counting ballots and certifying the results takes at least a week in most states, often longer.

Kyle Yoder, research director at The Center for Election Innovation & Research, said that is exactly the type of deliberative process voters should want and expect. He also cautioned the results news organizations report in the hours and sometimes days after Nov. 3 aren’t final totals. 

“Results aren't official until every ballot has been counted by every eligible voter,” he said. “That process takes time, and when you sit back and think about it, you want it to take time because what we want is for that count to be correct, for it to be accurate, for it to be complete.”

Yoder added that the “biggest point of confusion that we run into when we're talking to voters about all this is they think the results they're seeing on their TV on election night are the final results.” 

The Associated Press, which many news organizations look to for race calls, explains how its experts decide when to announce a winner and when to wait for more ballots to be counted. The Election Law Program, a collaborative effort between William & Mary Law School and the National Center for State Courts, has timelines for the various state deadlines. 

How long can states take to recount ballots?

After election officials certify the first count of ballots, especially close races can head into a recount. Some state laws require it automatically if the margin of victory is under a certain percentage. In other circumstances, specific people can request a recount, typically the runner-up, though some state laws allow voters or even political parties to request another count. 

“In many states, election recounts, legal challenges to the results, etcetera, can only begin once results have been certified,” Yoder said. “So it is in the interest of politicians who may be saber-rattling to allow certification to happen, so that they can begin those recounts, legal challenges.”

States have various deadlines for how long those recounts can last. But they can drag on amid lawsuits and Congress has the authority in some cases to conduct its own recount. 

Who decides which candidate wins an election and can the official decide not to send a certificate of election to Congress?

James Alcorn, senior director of the Election Law Program at the William & Mary Law School, said “it depends” on the state law, but that statewide races are typically certified by a secretary of state or a state board of elections.

“For an office that is not statewide, that may be certified at a local level, and in some states, congressional races are going to be similar,” he said.

There are very few modern examples of a local or state election official not sending a certificate of election before the new Congress convenes in early January. And those were due to ongoing lawsuits. 

New York Republican Rep. Claudia Tenney wasn’t sworn in until February 2021, more than three months after the election, amid a lawsuit over the outcome. The election was ultimately resolved when a state Supreme Court justice ordered election officials to certify the race and her opponent decided not to appeal the decision.  

Following an especially contentious election in North Carolina’s 9th Congressional District in 2018, the state board of elections decided not to certify either candidate as the winner and called for a special election. That seat had no representative in the U.S. House from early January until September. 

It took nearly eight months following the 2008 election for Democratic Sen. Al Franken to join the upper chamber of Congress amid a legal fight over the vote tally that ended at the Minnesota Supreme Court. 

What happens once a state sends the certificate of election to the House or Senate?

The House Clerk uses the certificates to compile the list of members-elect that is used on the first day of the new Congress to determine who can vote for Speaker. Once that first step is complete, members normally take their oaths and move on to other matters. 

Certificates of election must be sent to the Secretary of the Senate before newly elected or reelected members can take their oath in early January. 

“After the opening prayer and recitation of the pledge, the vice president of the United States, who serves as the president of the Senate, announces the receipt of certificates,” according to a post from the Senate Historical Office. “Following established tradition, senators-elect are then escorted down the center aisle of the Senate Chamber to the presiding officer’s desk.”

Only newly elected or reelected senators, about one-third of the chamber, are sworn in since it’s what’s known as a “continuing body.” That’s a very different set of rules than in the House, where every lawmaker typically takes the oath on the first day. 

Can either chamber of Congress refuse to seat someone with a certificate of election? 

Yes. The Constitution grants each chamber of Congress the power to be the “Judge of the Elections, Returns and Qualifications of its own Members.”

The Federal Contested Elections Act, a 1960s law, gives the House Administration Committee the ability to investigate the results of certain elections and make a recommendation to the full chamber about which candidate to seat. The law, which doesn’t apply to the Senate, gives the committee the authority to accept the certified results from election officials or conduct its own recount. Any recommendation would need to be approved or rejected by a majority vote on the House floor. 

Complaints have been filed under the FCEA several times during the past few decades, including after the 2020 election, when Iowa Democratic candidate Rita Hart asked the House to decide whether Republican Rep. Mariannette Miller-Meeks won the race. The panel investigated for months before Hart withdrew the complaint in April 2021.

A report from the nonpartisan Congressional Research Service says that “FCEA contests rarely change election results, as doing so typically requires the House to overturn a state-certified election result.”

There is a separate process on the first day of a new Congress that allows any member-elect to object to another member-elect taking the oath. 

Texas Republican Rep. Chip Roy tried this unsuccessfully in January 2021. It was rejected following a 371-2 vote of members-elect who had yet to take their oaths. Roy voted in favor of the resolution, which directed the speaker “to administer the oath of office to all Representatives-elect.”

The Senate also holds the ability to look into and ultimately decide the winner of a contested election, likely through the Rules and Administration Committee. 

The chamber’s official website on disputed elections notes that “a senator with the proper credentials against whom a challenge had been filed would be seated ‘without prejudice.’”

“Under this arrangement, if a committee investigation later determined that for some reason the individual was not entitled to a seat, he could be ‘excluded’ from the Senate by a simple majority vote, as opposed to having to be expelled, which required a two-thirds majority,” the webpage continues. 

The post later adds that the Senate historically has not intervened “where legal action in the federal or state courts was appropriate, and it seldom took very seriously the claims of a contestant who had failed to follow these avenues of redress. 

“Similarly, when a losing candidate demanded a recount of ballots, the Senate preferred to become involved only if the state law made no provision for such a recount. Still, in some cases the Senate felt impelled to act, and the sealed ballot boxes were shipped to Washington where staff members, carefully observed by representatives of both candidates, scrutinized the ballots and election records for possible irregularities.”