Författare: Richard Hargy Visiting Research Fellow in International Stud

Donald Trump’s second term as president could witness fractious breaks with many of America’s established constitutional norms. He has hinted at trying to get rid of senior US military figures whose views do not align with his, and even using legal action to pursue people who have “wronged” him over the past few years.

In this second Trump term, ultra-Maga loyalists are being lined up to serve in key positions and Trump will be free to embrace the new American right agenda, unlike in 2016 when he had to turn to the Republican party establishment for guidance.

There are over 1,000 posts to be filled in Trump’s new administration – including cabinet positions and ambassadorships. These roles normally require an approval vote in the US Senate (upper chamber of the US Congress).

The Senate vetting process was intended to be extensive and thorough, and designed to ensure presidential nominees are qualified and in good standing, and is also part of the checks and balances on the president.

The last presidential cabinet nominee not to be approved by the Senate was John Tower, nominated for defence secretary by George H.W. Bush in 1989.

But more recently Trump and other presidents have withdrawn candidates for cabinet roles if it seemed unlikely they would get nominations through the Senate, or when Senate investigations made information public that undermined their candidacy. Candidates have also withdrawn themselves under public scrutiny.

Trump has suggested that the Republican leadership in the Senate call a recess after he assumes the presidency, allowing him to unilaterally make all of his governmental appointments.

Many of Trump’s early picks had caused consternation] among Democrats such as Linda McMahon, Trump’s pick for Secretary of Education. But on their own they don’t have enough votes to stop a nomination going through, they would need some Republican votes. Matt Gaetz, who had been Trump’s nominee for attorney general, has just withdrawn from consideration.

There is a way, however, for Trump to bypass parliamentary procedure and confirm his preferred choices for all high-level government positions – recess appointments. Under Article II of the US constitution, known as the “recess appointments clause”, the president can make temporary appointments when the Senate is not in session, bypassing the need for congressional approval or vetting. Recess appointments are meant to be temporary and expire at the end of a congressional session, which is a year at most.

1. Recess appointments

For Trump’s plan to work the Senate would need to agree, by majority vote, to adjourn for at least ten days. The House of Representatives must also consent to this move.

If it dissents, either with the decision to recess or the duration, then as law and politics professor at Georgetown University Josh Chafetz has explained, the president has the constitutional power to adjourn both the Senate and the House of Representatives (the lower house) for a time of his choosing.

This provision, under article II, section 3, of the constitution, states that in a case of disagreement between the Senate and House, the president “may adjourn them to such Time as he shall think proper”.

Sarah Binder, senior fellow at the Brookings Institution (an American thinktank), said that in the past when the Senate was out of session for months rather than weeks, recess appointments were a logical way for presidents “to fill important vacancies without waiting until the Senate returned … (and this) authority … was rarely challenged”.

MSNBC reports on a Trump plan to get rid of ‘woke’ generals.

Senators are bestowed with “advise and consent” powers, which come into focus when a president forms their cabinet. But, are there any Republicans willing to openly defy Trump’s demand for recess appointments? Perhaps some. Texas Republican Senator John Cornyn recently said: “I don’t think we should be circumventing the Senate’s responsibilities.”

2. Use of executive orders

Trump has also made clear his desire to use executive orders to assert his control over the US military and accelerate the process of removing generals found to be “lacking in requisite leadership qualities”. Executive orders are signed directives from a president that do not require Congressional approval.

The president-elect said during the election campaign that he would purge the military of so-called “woke” generals. Trump’s transition team has reportedly drafted a “warrior board” executive order that would establish a group with the power to dismiss three- or four-star generals.

This panel would send its dismissal suggestions to Trump and these job losses would be expected within 30 days. Concerns have also been raised by current and former US defence department officials that many within their ranks could be subjected to loyalty tests, and that Trump could use further executive orders to cut thousands of civil servants’ jobs and replace them with conservative allies.

3. Legal manoeuvres

Since winning his first presidential election in November 2016, Trump has made regular references to seeking revenge against political opponents. He has threatened investigations, prosecutions and even imprisonment.

In the weeks leading up to November’s election, Trump repeatedly referred to Democrats as the “enemy from within” and mused that the US National Guard may be needed to address this “danger”.

However, how could Trump, in a second administration, follow up on this? His pick for attorney general could in theory direct the Department of Justice to open investigations.

As Trump prepares to assume the presidency for the second time and continues to signal his desire to contravene many of America’s established constitutional conventions, a US Supreme Court ruling from earlier this year may take on more ominous significance. In July 2024 the court gave serving presidents sweeping immunity from criminal prosecution.

This may serve to deepen worries on the lengths Trump will go to get his way, and achieve what he told an audience in July 2019 during his first term: “I have the right to do whatever I want as president.” Läs mer…

On November 5, millions of Americans will cast their votes for president, with the vast majority deciding between Democrat Kamala Harris or Republican Donald Trump. This historic election, however, is not determined by a singular national poll, but rather a state-by-state contest. Many people outside the US, and some inside, do not understand how this complicated system works.

Here are five things to know about the electoral college system:

1. It’s not one electoral contest, but 50 separate races

The founding fathers opted against a national popular vote where the winning candidate just has to gain a majority of votes to claim victory. They decided instead to establish an electoral college under Article II of the US Constitution.

Under this system, voters in every US state and the District of Columbia decide the outcome of a winner-takes-all contest for their state’s electoral votes. Each state is allocated a set number of electoral votes, in line with the size of its population. For example, Texas, with a population of over 29 million, has 50 electoral votes. North Dakota, on the other hand, has a population of under 800,000 and is apportioned three.

By securing a majority of the vote in a state, a candidate collects its allotted electoral college votes. There are 538 in total, with the winner needing at least 270 to secure the presidency (with their running-mate becoming vice-president).

Maine and Nebraska are the only two exceptions to the winner-takes-all approach. These states also use their congressional districts to allocate some electoral college votes: two go to each state’s overall popular vote winner, while one goes to the popular vote winner in each congressional district (two districts in Maine, three in Nebraska).

So, when Americans mark their ballot with their choice for president, this vote is technically not awarded automatically to the candidate. Rather, it goes to the individual state’s electors. These people convene across all 50 states once the election is complete, then formally send their state’s electoral votes to the US Congress. The electors are usually state election officials or prominent party members.

Brown University professor of political science Wendy Schiller explained the choice of an electoral college system more than 200 years ago was rooted in a distrust of citizens to make a reasoned choice: “The origins of the electoral college were not supposed to reflect voter opinion at all – it was to be a gate against making a bad choice. It was an elite bulwark against popular opinion.”

2. It can allow for unpredictable and unruly outcomes

By its very nature, the electoral college can result in two unusual, but not improbable, scenarios. First, a candidate can win the electoral college while losing the popular vote and still become president – as happened most recently in 2000 with George W. Bush and in 2016 with Trump.

Secondly, the system allows for a situation were neither candidate wins a majority of electoral votes. If there is a 269-269 tie, a “contingent election” is held under the 12th Amendment. In this case, members of the new House of Representatives, sworn in on January 3 2025, would choose the next president. They do not vote based on individual preference. Instead, every state delegation gets one vote, with a simple majority of 26 state delegation votes needed to decide who becomes president. This has happened only twice in presidential elections, in 1801 and 1825. The House must continue voting until a president is elected.

A history of the electoral college system.

3. In 2020, Trump’s supporters sought to challenge the electoral college results

State legislators can object to their state’s general election outcome during the congressional certification. This happened in 2020 when a group of Republicans objected to results in Pennsylvania and Arizona – both won by Democrat Joe Biden. After supporters of Trump stormed the Capitol building in January 2021, protesting the official authorisation of votes, Congress updated the 1800s-era Electoral Count Act to make it harder to challenge the electoral college result.

Following the 2020 election, certain electors in several swing states attempted to falsely declare Trump the winner. These included high-profile Republicans in Georgia, Michigan, Nevada, Arizona and Wisconsin. Trump’s campaign lawyer, Kenneth Chesebro, pleaded guilty in Georgia to his role in subverting the election.

There are fears of a potential repeat of this scenario in 2024, should Trump lose again. Documentation returned to state election officials has revealed that over a dozen of these individuals are returning as potential electors this year.

4. Criticism includes national security concerns and disinformation

Some call the electorial college system undemocratic. Others point to the “faithless elector” issue, whereby the electors within a state cast their vote against the preference of their state’s popular vote.

Small vote margins often secure all the votes in key swing states. For example, in 2016, Trump won Michigan by just 13,080 votes (0.3%), Wisconsin by 27,257 votes (1.0%), and Pennsylvania by 68,236 votes (1.2%). This allocated Trump 46 electoral votes as well as victory in the presidential election.

This has led Brookings Institution fellows Elaine Kamarck and Darrell M. West to conclude that “false news purveyors don’t have to persuade 99% of American voters to be influential, but simply a tiny amount in [certain states] … A shift of 1% of the vote or less based on false narratives would have altered the outcome.”

Harvard University professor of government Ryan Enos told me that foreign adversaries with an interest in the outcome of the US election are “aware of how decentralised the system is, and how chaos can be sowed by putting pressure on particular states”.

5. Some people want to abolish it

The process remains highly contentious and can result in a more fractious political climate. Consequently, there many who want to abolish it. West, a senior fellow of governance studies at Brookings, said the US should get rid of the electoral college. He called it a relic that was established “as an elite-based mechanism to basically choose the president because [America’s founding fathers] did not trust the general public”.

However, Barnard College professor of political science Sheri Berman had a different view, saying that if you believe different states should have some guaranteed level of representation regardless of their population, then designing a system that gives this to them could be viewed as legitimate.

Ultimately, despite its unusual elements, Christine Stenglein, a research analyst at Brookings, believes “the electoral college is part of the US constitution, and therefore not likely to change any time soon”. Läs mer…

In November 2020, when Americans last went to the polls to elect a president, it took four days after voting closed for Joe Biden to be declared the winner.

This was largely due to razor-thin margins in the crucial battleground states, which resulted in some recounts, as well as large numbers of mail-in ballots that had to be counted after election day. There was the added challenge of this entire process being conducted amid a global pandemic.

Since then, some states have changed their election laws to speed up the election count. But while it may not take as long this time round, one thing we can be sure of is that a winner will not be known on election night itself.

When do polls open and close?

There is no set national time for voting to begin on the morning of November 5. Most states will begin voting at 7am in their local time, with others starting as early as 5am or as late as 10am. Voting will commence at a variety of times in some states, such as New Hampshire, Tennessee and Washington where this is decided by different counties or municipalities.

Polls close at a range of times across the country, too. Voting will end as early as 6pm US eastern time (11pm GMT) in Indiana and Kentucky, while polls in Hawaii and Alaska, the western-most states, do not close until midnight US eastern time (5am GMT).

An early indicator of which candidate is performing better will come between 7pm and 8pm eastern time (midnight and 1am GMT), when polls close in the key battleground states of Georgia and North Carolina. Both states are competitive for Kamala Harris and Donald Trump, and if the former is declared the victor in either, then the contest will pivot in her favour.

The next key moment could occur between 8pm and 9pm eastern time (1am and 2am GMT), when voting ends across the so-called blue wall states of Michigan, Pennsylvania and Wisconsin. However, it is unlikely that a winner will be declared in any of these states straightaway. By 10pm eastern time (3am GMT), polls will have closed in two other critical swing states, Arizona and Nevada.

When will votes be counted?

There are several factors that could hinder results being announced in the hours immediately after voting ends. In Arizona, for example, state laws allow voters to drop their completed ballot papers off at the polling station on election day or the day prior – something that not all states do. However, these “late early” ballots cannot be processed until after voting ends.

Pennsylvania is arguably the most prized swing state that both the Democratic and Republican campaigns are vying for. The state has 19 electoral votes, the most of any battleground state, so the victor will probably win the electoral college (the group of officials that elects the president based on the vote in each state) and thus also the presidency.

Read more:
US election: how does the electoral college voting system work?

But Pennsylvania does not allow election workers to process mail ballots until 7am local time on election day, which could mean the result takes longer than 24 hours after polls close to be made known.

That said, Alauna Safarpour, an assistant professor at Pennsylvania’s Gettysburg College, does not think the wait will be as long as it was four years ago. Writing for The Conversation on October 29, she said that it was “highly likely” that fewer Pennsylvanians will choose to vote by mail this time around.

“A smaller proportion of voters opted to vote by mail in the 2022 midterm election than in the 2020 general election, and that trend is likely to continue in 2024”, she says.

Read more:
Why Pennsylvania’s election results will take time to count

Two more crucial states, Michigan and Nevada, have also made changes to the election count since 2020. These states now permit ballot papers to be processed in advance of polling day. On the other hand, the ability of North Carolina to process votes ahead of the election has been made more difficult due to the damage recently caused by Hurricane Helene. This may lead to further delays.

In Wisconsin, vote counting in two of the state’s biggest counties – Milwaukee and Dane – can also be particularly slow. Milwaukee and Dane counties are both significant urban centres with a combined population of around 1.5 million people. The margin in these counties will be significant to the result in Wisconsin and the presidential race overall.

A woman passes signs encouraging early voting near Philadelphia City Hall in Philadelphia, Pennsylvania.
Will Oliver / EPA

What might delay the results?

There are concerns that certain domestic players could seek to frustrate and delay election results in the critical swing states. In January 2020, for example, a large number of Republicans in Congress objected to results in Pennsylvania and Arizona – states that were both won by Biden.

And in seven swing states, people falsely claiming to be members of the electoral college attempted to declare Trump as the winner of their state. Their votes were sent to Congress to be counted alongside those of the true electors, with some Congress members arguing that the new slate of electoral votes cast doubts over the official result in certain states. In 2023, a Trump campaign lawyer, Kenneth Chesebro, pleaded guilty in Georgia to his role in subverting the election.

Norman Eisen, Samara Angel and Clare Boone, who are all fellows at the Brookings Institution thinktank, have provided detailed analysis on how this scenario could be repeated in 2024. They point to nefarious strategies that could be utilised to confuse results by refusing to certify elections at the “county level”.

For example, three election deniers – Rick Jeffares, Janice Johnston and Janelle King – hold the balance of power in Georgia’s state election board. They have jointly devised new rules that allow vote certification to be paused while investigations are launched into alleged “irregularities”.

Eisen, Angel and Boone assert that while “these attempts will likely meet the same fate as prior efforts, they could still stoke uncertainty and distrust.” So, given the existence of these threats and the fact that polls show a dead heat, we will probably not know the election’s winner for at least a few days. Läs mer…