WASHINGTON (AP) — There will be 77 days between Election Day and the inauguration, a period in which the president-elect can prepare his administration to assume power from President Joe Biden.
The presidential transition, long based on tradition and bipartisanship, became a political point of contention four years ago after then-President Donald Trump made baseless claims challenging his loss and his administration delayed the start of the transition process for weeks.
This year, a novel law aims to start the transition earlier, regardless of who wins. However, if neither major party candidate concedes after Election Day, the updated rules will allow both sides to receive additional government funding and logistical support to begin work on seizing power. That could leave both Vice President Kamala Harris and Trump dueling governments waiting for them for weeks.
“Rules can only get you so far, and ultimately the players in the system have to work toward a common goal,” said Max Stier, president and CEO of the nonprofit Public Service Partnership, which has worked with candidates and incumbents on transitions . “Everyone should have the common goal of ensuring that the transfer of power is smooth and effective. And that requires cooperation that the law alone cannot enforce.”
Here’s a look at how changes that were supposed to solve the problems of four years ago may not solve the problems to come this time, and what the impending transition looks like in the meantime:
What happened in 2020?
Trump lied about widespread voter fraud that did not occur, delaying the start of the transition from one administration to the next in 2020 from Election Day on November 3rd to November 23rd.
Trump-appointed General Services Administration head Emily Murphy consulted the 1963 transition law and concluded she had no legal authority to pick a winner — and would be tasked with funding and cooperating on a Biden transition government – because Trump still has the right to challenge the results in court.
The GSA essentially acts as a landlord to the federal government, and only when Trump’s efforts to undermine free and fair election results in key states failed did Murphy agree to officially “identify a president-elect” and begin the transition process. Trump also announced on social media that his administration would cooperate.
What’s different this time?
The Presidential Transition Improvement Act, which took effect in December 2022, now requires the transition process to begin five days after the election, even if more than one candidate has not conceded.
This avoids lengthy delays and means that “a ‘positive determination’ by GSA is no longer a requirement for receiving transition support services,” the agency’s guidance on the novel rules states.
However, the novel law also effectively requires federal support and cooperation for both candidates in order to initiate a transition. It says that support should continue until “significant legal challenges” that could change the election outcome are “substantially resolved” or until voters from each state meet in December to formally choose an Electoral College winner.
That means the administration may provide enough support to allow both sides to prepare a government by mid-December — just about a month before Inauguration Day on Jan. 20.
Derek Muller, a law professor at the University of Notre Dame and an expert on the presidential transition who supported the law, said it ensures that potentially two candidates will receive support for the transition, with one ultimately dropping out. He said that would be better than a situation in which neither side is provided support for the transition – which could cause delays that could lead to national security lapses.
“In the past, none of the candidates received funding. Now it’s both,” said Müller.
He pointed to the contentious 2000 election, in which the GSA did not determine the winner until the recount dispute in Florida was resolved on Dec. 13 – raising questions about national security lapses that may have contributed to the U.S were inadequately prepared for the attacks of September 11th the following year.
“It could take until mid-December. There is no doubt that this is a risk,” Muller said of possible dueling transition efforts after this year’s election. “But I think it’s a risk they want to take. And even in mid-December, the inauguration is still a month away, so at least you have some certainty.”
Yet today, Trump continues to falsely claim that he won in 2020 and says only that he will accept the results from November of that year if they are fair. Therefore, it’s effortless to imagine he would only do this if he won – and potentially put the novel law to the test.
How are both sides preparing?
The far-reaching transition process means that around 4,000 government positions will be filled by political representatives – people who are specifically selected for their tasks by the elected president’s team. This often starts with significant cabinet departments.
Harris’ team has already reached an agreement with the Biden administration to apply government office space in Washington and other resources and begin vetting potential key national security employees.
Trump’s team failed to sign transition agreements and missed deadlines to agree with the GSA on logistical issues such as office space and technical support, and with the White House on access to authorities, including documents, staff and facilities.
Stier, of the Partnership for Public Service, said the Trump administration’s disregard for the transition process dates back to 2016, when the then-president-elect fired his transition coordinator, former New Jersey Gov. Chris Christie, and then months into his early administration I’m trying to sort out basic personnel issues.
Stier said the agreements to prepare for the transition were merely “the starting signal – it is not the actual race.” The entire process, he said, “requires a deep understanding of our government and a willingness to recognize the importance of the process.”
What will the transition look like?
Neither side will start completely from scratch. While Harris will establish her own government, she could inherit some holdovers from the Biden administration, where she was vice president. Trump will put in place a novel team, but he built an entirely novel administration in 2017 and can do it again.
Harris could also choose to keep the Senate-confirmed Biden appointees as acting Cabinet secretaries, just in case it becomes complex to get their nominations through a GOP-controlled Congress after the election. She has promised to appoint a Republican to her Cabinet, with an early favorite being former Wyoming Rep. Liz Cheney — once the House GOP’s third-ranking member and daughter of a Republican vice president — who campaigned with Harris.
Trump said he could tap former independent presidential candidate and anti-vaccination activist Robert Kennedy Jr. on health issues and make South African-born Elon Musk federal “cost-cutting” minister.
Either way, John Kirby, Biden’s national security spokesman, said the current administration is prepared for an organized transition “no matter how the election unfolds.”
