The Constitution is strong enough to withstand a delayed electoral count

For purposes of the 20th Amendment, the only question is whether the process of electing the new president and vice president will have been completed by then. The amendment is ready for either possibility.

The Constitution does not care whether Congress finishes this counting process on Jan. 6, 7th, 8th or 9th, or indeed any date prior to Jan. 20. They are all the same for constitutional purposes. Given that Joe Biden and Kamala D. Harris will have a majority of electoral votes, once Congress completes this counting process, their terms as president and vice-president will begin at noon on Jan. 20 — just as constitutionally scheduled all along — regardless of when Congress finishes its work.

The statute that Congress uses to implement the constitutional process of counting electoral votes — the Electoral Count Act — has provisions for recesses if objections arise to electoral votes, as happened on Wednesday when the Arizona results were challenged.

There’s been some confusion recently over how these recess rules work, and so let’s clear that up. Each chamber can take a one-day recess if “a question shall have arisen in regard to counting any such votes,” but the statute limits the total amount of recess to no more than five days. The consequence of reaching that five-day limit is not, as has been suggested, to toss the matter to the House of Representatives, for the alternate procedure by which each state’s delegation casts its vote for president. Instead, if Congress hasn’t finished after five days, it needs to keep at it. The law provides that “no further or other recess shall be taken by either House.”

In other words, Congress must continue counting until it finishes, to be in a position to declare whether a candidate has achieved an electoral college majority. Because there is a statutory limit of two hours on each objection, the inability to take additional recesses after five days — and the additional requirement that the “joint meeting shall not be dissolved” until the counting is done — means there’s an eventual time limit on the whole counting process.

Given these rules, and the limited number of objections still to be expected, there is every reason to think that the counting will get back on track and proceed fairly quickly.

But in the very unlikely event that the counting process remains delayed through Jan. 20, the 20th Amendment takes care of that, as well. There will be an acting president — not Trump, not Pence — until Congress can complete the count. Once Congress declares the new president-elect, the acting president must step aside.

That acting president would be Speaker Nancy Pelosi (D-Calif.). The statute that Congress has enacted for that purpose says the House speaker becomes acting president “upon [her] resignation as Speaker and as Representative in Congress.”

There’s one more wrinkle to consider. Some have argued that it would be unconstitutional for a House speaker to become acting president. But that argument does not apply in the context of an incomplete election under the 20th Amendment. Instead, if the argument is valid at all, it is only when a vacancy occurs in both the presidency and vice-presidency because of death or disability.

The point is technical but important enough to explain. Article II of the Constitution refers to which “officer” acts as president in the case of death or disability; the claim is that only an executive branch official can be an “officer” and so the speaker is precluded from the line of succession. On that interpretation of Article II, Secretary of State Mike Pompeo would become acting president.

But the 20th Amendment does not use the term “officer.” Instead, it refers to the “person” who shall act as president in the event that election is unfinished. Pelosi is undoubtedly a person, and so — sorry, coup plotters — she is eligible to be acting president.

I’m sure it would be tough for Pelosi to give up the speaker’s gavel she just won again, but I’m also sure she would do her patriotic duty if necessary. But it won’t come to that. Biden will be president in two weeks, and Pelosi still the speaker.

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