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How long can vote counting go on for? Your U.S. election questions answered

From vote counting to presidential term limits, we're tackling what you want to know about the 2020 U.S. election. Email us your questions to ask@cbc.ca and we'll answer as many as we can here on CBCNews.ca, on CBC News Network and directly via email. (And keep your COVID-related questions coming to COVID@cbc.ca.)

How long can vote counting go on for?

Predictions for a drawn-out aftermath to the U.S. election appear to be coming true with the race coming down to vote counts and potential recounts in a few key states.

With election night now looking like election days, CBC readers, including Suzanne S., asked if there is a constitutional cut-off date for all ballots to be counted.

The answer is complicated.

First, it's important to note that states have their own cut-off dates for accepting and counting mail-in ballots. Pennsylvania, for example, will still count mail-in ballots received after (but postmarked by) election day. It will also count military and overseas ballots up to one week after that.

WATCH | How the votes are counted in Pennsylvania: 

Philadelphia City Commissioner Al Schmidt says things have changed in the counting process due to unprecedented levels of mail-in voting and it's important to take the time to count the votes accurately. 1:18

That said, the date that states should keep in mind is Dec. 8., or what's known as safe harbour day, which is six days before the electoral college votes.

Congress is not supposed to challenge a state's election as long as they have finalized their results by that deadline, said John Fortier, director of governmental studies at the Bipartisan Policy Center, a Washington, D.C.-based think-tank that promotes bipartisanship.

The deadline essentially acts as an incentive for states to have their votes finalized and have their electors appointed by that day.

Election challengers observe as absentee ballots are processed in Michigan at the central counting board in Detroit on Wednesday. (Carlos Osorio/Associated Press)

Otherwise, it leaves room for Congress to determine the state's winner when they convene to count the electoral college votes on Jan. 6.

As for legal challenges, it's unclear exactly how long those could go on for, but James Gardner, an expert in election law at the University at Buffalo, said courts will be under pressure to conclude legal proceedings before the safe harbour date.

As far as the Trump campaign is concerned, it is very difficult to anticipate what kinds of legal claims it might make, Gardner said. 

"Any irregularity can generate a legal claim," he said. "Maybe not a strong one, but one." 

Are there any restrictions on what outgoing presidents can do?

While we don't yet know who the next president will be, Barry L. wanted to know if an outgoing president's powers remain the same before the president-elect is inaugurated.

The answer is yes. 

Nothing changes between election day and inauguration day on Jan. 20., said Fortier, who noted that outgoing presidents typically use their powers in "last-minute ways." 

Barack Obama granted many sentence commutations during his final months as president, focusing primarily on shortening sentences of those convicted of drug offences. This photo shows Obama meeting with president-elect Donald Trump in the Oval Office on Nov. 10, 2016. (Pablo Martinez Monsivais/Associated Press)

They might write new executive orders or issue presidential pardons while they still have the chance

Conversely, the president-elect does not receive any presidential power until they are officially sworn in.

How many times can someone be president?

Ethel F. wanted to know if Trump loses, would he be able to run again?

The answer is yes. According to the 22nd Amendment to the U.S. Constitution "no person shall be elected to the office of the president more than twice."

So, if he isn't re-elected this time, Trump would be eligible to run again, unlike George W. Bush or Barack Obama, for example.

But what about Franklin D. Roosevelt?

The longest serving Canadian prime minster, William Lyon Mackenzie King, left, who was in office for a total of 21 years, and the longest serving U.S. president, Franklin D. Roosevelt, who spent 12 years in office, have a chat in July 1936. (National Archives of Canada)

Roosevelt is the only U.S. president to serve more than two terms. In fact, he held the office a record four times from 1933 until his death in 1945.

"He won big in all four of his elections," said Susan Dunn, a professor of humanities at Williams College in Massachusetts. Roosevelt won his third term as the U.S. was emerging from the Great Depression and on the brink of the Second World War. 

"The country needed him."

Term limits weren't introduced until 1951 when the 22nd Amendment was ratified.

Could Trump run as vice-president?

Yes. So long as he isn't re-elected in the current race.

A one-term president is eligible to run as the second name on a party ticket. But not if he wins a second term as president in 2020.

"Because you have to be eligible to be president to be vice-president," said Fortier.

There is one rare and unlikely scenario where a two-term president could become president a third time: if he or she were Speaker of the House or a cabinet member and the line of succession fell to them.

U.S. Democratic presidential candidate Joe Biden and vice-presidential candidate Kamala Harris are shown at a campaign event in Phoenix on Oct. 8. (Kevin Lamarque/Reuters)

Here's another what-if: If Biden wins and is unable to complete more than two years in office, and Kamala Harris assumes the presidency, she would only be eligible to seek one more term as president, according to the limits of the 22nd Amendment.

In Canada, however, there are no limits on the length of time a federally elected politician can serve. 

What happens if the president-elect dies before being sworn in?

While we're exploring scenarios, let's tackle John G.'s question. He wanted to know what would happen if the winner became incapacitated or died before inauguration day?

There are essentially three different answers, each depending on when the president-elect were to die. 

  • Before the electoral college vote.
  • After the electoral college vote has been counted and ratified by Congress.
  • Or the small window of time between the electoral college vote and its ratification.

If a candidate were to win the general election but die before the electoral college votes on Dec. 14., the electors pledged to that candidate would be expected to vote for a new nominee selected by their national party, said Fortier.

Electors fill out their ballots during a meeting of Washington state's electoral college on Dec. 19, 2016, in Olympia, Wash. (Elaine Thompson/Associated Press)

"The political party that has the vacancy would meet again," he said, "and they would select a new candidate."

Fortier said the "most obvious thing" would be to move up the vice-president-elect. "But it doesn't have to be that way," he said, because there are no laws requiring either party to do so.

In the second scenario, where the president-elect dies before inauguration day but after Congress ratifies the results of the electoral college vote, the normal line of succession would follow and the vice-president-elect would be sworn in on Jan. 20.

That said, we don't really know what would happen in the third scenario.

"It's arguably one of our most confusing," said Fortier.

Congress would have to decide whether to count the votes for a deceased candidate in a joint session.

If Congress counts the ballots as they are, the vice-president-elect would assume the role of the president on Jan. 20., and would later appoint another vice-president.

But if Congress decides to toss out the votes of the dead president-elect, no candidate would meet the 270 electoral college votes required to win, triggering the 12th Amendment. This means the Senate would be in charge of picking the vice-president and the House of Representatives would choose the president.

"We just don't know what would happen," said Fortier, "and it's a dangerous period because of that."

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source https://www.cbc.ca/news/ask-us-election-vote-count-questions-1.5790131?cmp=rss

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