Though Democrats clinched one pivotal Senate race in Georgia and are narrowly ahead in another, continued vote-counting and expected litigation could delay knowing which party controls the chamber and slow the installation of key people in President-elect Joe Biden’s cabinet, says Northeastern professor Daniel Urman.
In the Senate runoff election Tuesday, Democrat Raphael Warnock was declared the winner over Republican incumbent Kelly Loeffler by 53,000 votes, according to multiple news outlets. Loeffler spoke to supporters before her race was called and said she would not concede.
Meanwhile, Democrat Jon Ossoff’s lead over Republican David Perdue stood at 16,000 votes as of early Wednesday morning. Both Warnock and Ossoff appear to have outperformed Biden’s margin of victory in the state over President Donald Trump.
Ossoff’s campaign issued a statement Tuesday night saying remaining uncounted votes are in areas where the candidate has done well, and expressing confidence in victory. Perdue’s campaign released its own statement promising to pursue legal options and also said its candidate would prevail.
It could take days to know the winner, says Urman, who teaches constitutional law, law and public policy, and the modern U.S. Supreme Court at Northeastern. Election officials will be more focused on getting it right than rushing the call, he adds.
“Given the inevitable election litigation, there’s definitely an incentive to get it right,’” Urman says, “even if it takes time.”
At stake is control of the upper chamber, and with it the fate of Biden’s legislative agenda and personnel appointments. A win would allow the GOP to steer the chamber for the first two years of Biden’s presidency. If Democrats scoop up both seats, it would knot the 100-seat chamber at 50 seats apiece and Vice President-elect Kamala Harris would cast the tie-breaker.
If the ultimate outcome in the Ossoff-Perdue matchup is closer than 0.5 percent it will trigger an automatic recount, and the losing side is likely to litigate, further delaying the results with Inauguration Day looming on Jan. 20, Urman predicts.
“The law is point five, which is close,” he says, “but Georgia is divided.”
Current Senate Majority Leader Mitch McConnell has said that while Biden’s personnel picks will get votes on the Senate floor if the Kentucky Republican remains in power, control of the Senate will largely determine how quickly that will happen.
His counterpart, Minority Leader Chuck Schumer, has encouraged Senate committees to prepare to hold hearings in January immediately after Georgia’s results are certified, according to published media reports. Georgia counties have until Jan. 15 to certify results and Secretary of State Brad Raffensperger has until Jan. 22 to certify statewide results.
The political state of limbo could also impact the type of candidates for remaining positions, Urman explains.
Ever since then-Democratic Majority Leader Harry Reid of Nevada lowered the confirmation vote threshold for all presidential appointments except the Supreme Court in 2013, nominees considered controversial or extreme could squeak by with 50 votes instead of 60.
But with a compressed confirmation timeline and an ideologically-divided Senate, Biden may have to choose moderates for vacant slots, Urman says.
“Could it delay an attorney general announcement? Could it push Doug Jones up to the top of the list over Sally Yates?” Urman says, referring to the leading candidates for top prosecutor. “Yes, it could.”
It could also lead to a negative perception problem for a nascent administration, he adds.
“Cabinet nominees getting held up or withdrawn can really contribute to the perception that presidents are stumbling out of the gate,” says Urman. “We saw that in Bill Clinton’s first term.”
No confirmation hearings have yet been announced and the Senate is currently scheduled to be in session for just one day between the Georgia election and the inauguration.
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