WASHINGTON — Voting ended Tuesday in this year’s midterm elections, leaving officials and volunteers counting tens of millions of ballots to determine which U.S. House and Senate candidates will take the oath of office in January.

The post-election process includes numerous steps and varying deadlines for when ballots have to be certified, since each state has different laws governing not only what happens on Election Day but what happens afterward.

Once local and state election officials wrap up their work, the process moves to Congress, which has its own rules and procedures. The Constitution also gives the House and Senate final say over whether to seat someone.

Here’s a look at what’s next and where issues could arise, aside from lawsuits that may be filed or already in progress.

When will there be official results? 

Counting ballots and certifying the results takes at least a week in most states, often longer.

Kyle Yoder, research director at The Center for Election Innovation & Research, said that is exactly the type of deliberative process voters should want and expect. He also cautioned the results news organizations report in the hours and sometimes days after Nov. 3 aren’t final totals. 

“Results aren’t official until every ballot has been counted by every eligible voter,” he said. “That process takes time, and when you sit back and think about it, you want it to take time because what we want is for that count to be correct, for it to be accurate, for it to be complete.”

Yoder added that the “biggest point of confusion that we run into when we’re talking to voters about all this is they think the results they’re seeing on their TV on election night are the final results.” 

The Associated Press, which many news organizations look to for race calls, explains how its experts decide when to announce a winner and when to wait for more ballots to be counted. The Election Law Program, a collaborative effort between William & Mary Law School and the National Center for State Courts, has timelines for the various state deadlines. 

How long can states take to recount ballots?

After election officials certify the first count of ballots, especially close races can head into a recount. Some state laws require it automatically if the margin of victory is under a certain percentage. In other circumstances, specific people can request a recount, typically the runner-up, though some state laws allow voters or even political parties to request another count. 

“In many states, election recounts, legal challenges to the results, etcetera, can only begin once results have been certified,” Yoder said. “So it is in the interest of politicians who may be saber-rattling to allow certification to happen, so that they can begin those recounts, legal challenges.”

States have various deadlines for how long those recounts can last. But they can drag on amid lawsuits and Congress has the authority in some cases to conduct its own recount. 

Who decides which candidate wins an election and can the official decide not to send a certificate of election to Congress?

James Alcorn, senior director of the Election Law Program at the William & Mary Law School, said “it depends” on the state law, but that statewide races are typically certified by a secretary of state or a state board of elections.

“For an office that is not statewide, that may be certified at a local level, and in some states, congressional races are going to be similar,” he said.

There are very few modern examples of a local or state election official not sending a certificate of election before the new Congress convenes in early January. And those were due to ongoing lawsuits. 

New York Republican Rep. Claudia Tenney wasn’t sworn in until February 2021, more than three months after the election, amid a lawsuit over the outcome. The election was ultimately resolved when a state Supreme Court justice ordered election officials to certify the race and her opponent decided not to appeal the decision.  

Following an especially contentious election in North Carolina’s 9th Congressional District in 2018, the state board of elections decided not to certify either candidate as the winner and called for a special election. That seat had no representative in the U.S. House from early January until September. 

It took nearly eight months following the 2008 election for Democratic Sen. Al Franken to join the upper chamber of Congress amid a legal fight over the vote tally that ended at the Minnesota Supreme Court. 

What happens once a state sends the certificate of election to the House or Senate?

The House Clerk uses the certificates to compile the list of members-elect that is used on the first day of the new Congress to determine who can vote for Speaker. Once that first step is complete, members normally take their oaths and move on to other matters. 

Certificates of election must be sent to the Secretary of the Senate before newly elected or reelected members can take their oath in early January. 

“After the opening prayer and recitation of the pledge, the vice president of the United States, who serves as the president of the Senate, announces the receipt of certificates,” according to a post from the Senate Historical Office. “Following established tradition, senators-elect are then escorted down the center aisle of the Senate Chamber to the presiding officer’s desk.”

Only newly elected or reelected senators, about one-third of the chamber, are sworn in since it’s what’s known as a “continuing body.” That’s a very different set of rules than in the House, where every lawmaker typically takes the oath on the first day. 

Can either chamber of Congress refuse to seat someone with a certificate of election? 

Yes. The Constitution grants each chamber of Congress the power to be the “Judge of the Elections, Returns and Qualifications of its own Members.”

The Federal Contested Elections Act, a 1960s law, gives the House Administration Committee the ability to investigate the results of certain elections and make a recommendation to the full chamber about which candidate to seat. The law, which doesn’t apply to the Senate, gives the committee the authority to accept the certified results from election officials or conduct its own recount. Any recommendation would need to be approved or rejected by a majority vote on the House floor. 

Complaints have been filed under the FCEA several times during the past few decades, including after the 2020 election, when Iowa Democratic candidate Rita Hart asked the House to decide whether Republican Rep. Mariannette Miller-Meeks won the race. The panel investigated for months before Hart withdrew the complaint in April 2021.

A report from the nonpartisan Congressional Research Service says that “FCEA contests rarely change election results, as doing so typically requires the House to overturn a state-certified election result.”

There is a separate process on the first day of a new Congress that allows any member-elect to object to another member-elect taking the oath. 

Texas Republican Rep. Chip Roy tried this unsuccessfully in January 2021. It was rejected following a 371-2 vote of members-elect who had yet to take their oaths. Roy voted in favor of the resolution, which directed the speaker “to administer the oath of office to all Representatives-elect.”

The Senate also holds the ability to look into and ultimately decide the winner of a contested election, likely through the Rules and Administration Committee. 

The chamber’s official website on disputed elections notes that “a senator with the proper credentials against whom a challenge had been filed would be seated ‘without prejudice.’”

“Under this arrangement, if a committee investigation later determined that for some reason the individual was not entitled to a seat, he could be ‘excluded’ from the Senate by a simple majority vote, as opposed to having to be expelled, which required a two-thirds majority,” the webpage continues. 

The post later adds that the Senate historically has not intervened “where legal action in the federal or state courts was appropriate, and it seldom took very seriously the claims of a contestant who had failed to follow these avenues of redress. 

“Similarly, when a losing candidate demanded a recount of ballots, the Senate preferred to become involved only if the state law made no provision for such a recount. Still, in some cases the Senate felt impelled to act, and the sealed ballot boxes were shipped to Washington where staff members, carefully observed by representatives of both candidates, scrutinized the ballots and election records for possible irregularities.”

The U.S. Department of Justice is stepping up its legal campaign over the midterm elections, suing Alaska over its U.S. Senate election and appealing a lawsuit against suspected noncitizen voters in California.

Election law experts have cast doubt on the strength of the cases, criticizing them as performative.

The Justice Department sued Alaska election officials late Thursday in a preemptive attempt to stop the state from certifying the results of its Senate election if, under the state’s ranked-choice voting method, the Republican incumbent loses by a smaller margin than the votes earned by another candidate of the same name. 

Separately, the Justice Department appealed to the 9th U.S. Circuit Court of Appeals a lawsuit seeking to prevent California election officials from counting the ballots of approximately 20,000 voters it says are likely noncitizens unless they can prove their citizenship. The DOJ had demanded a district court decision by Thursday.

Collectively, the Justice Department’s actions signal an expanding legal effort to assert authority over voting as Election Day approaches. President Donald Trump faces political peril in the midterms, with Democrats all but certain to launch investigations into his administration if they retake the House or Senate.

The Trump administration’s past attempts to influence how states run elections largely failed, with the U.S. Supreme Court blocking proposed restrictions on mail ballots and federal judges dismissing DOJ lawsuits to obtain states’ sensitive voter data. But in the waning days before the midterm elections, federal officials are again ramping up election-related activity.

“I’m the one that said do it,” Trump, speaking to reporters on Friday, said of the Alaska lawsuit.

Another Dan Sullivan suit

The Alaska lawsuit came hours after U.S. Attorney General Todd Blanche refused to rule out efforts to block states from certifying their elections. Speaking to reporters after an unrelated event in Virginia, Blanche said it wasn’t the DOJ’s intention to “improperly interfere” with election certifications even as he left room for his department to act.

“I mean, is there any scenario? Yes, of course there’s scenarios that we could all come up with, hypothetically, you know, some doomsday scenario, for example, right?” Blanche said.

The Alaska Division of Elections and the Justice Department didn’t immediately respond to requests for comment.

In the Alaska Senate race, Republican Sen. Dan S. Sullivan and his supporters have cast Dan J. Sullivan, also a Republican, as a spoiler in a competitive race against Democrat Mary Peltola. 

State officials initially kept Dan J. Sullivan off the August primary ballot but the Alaska Supreme Court overturned the decision. He finished third, with 2.5% of the vote, qualifying for the four-way general election.

Trump had previewed a possible lawsuit earlier in the week. On Truth Social, the president on Wednesday called the Senate race in Alaska “totally confusing” and slammed Dan J. Sullivan’s presence.

“We are looking at powerful legal options to remove the fraudulent Daniel J. Sullivan Jr. from the Ballot, and holding the Democrats accountable for their Election Interference, in the pursuit of Justice and Fairness,” Trump wrote.

Experts skeptical

Early expert reaction to the Justice Department’s complaint has been sharply critical. The complaint cites the preamble of the National Voter Registration Act, which says one of its purposes is “to protect the integrity of the electoral process.” 

Writing in Election Law Blog, Derek Muller, a professor of law at the University of Notre Dame focused on elections, called the legal argument “one of the worst ones I’ve ever seen.”

“Some, in a panic, might react that the Department is trying to deny certification of an election in a state. Of course that’s what the Department is trying to do. But the legal claim is so absurdly thin, there’s essentially no likelihood of success,” Muller wrote.

California noncitizen case appealed

In California, Assistant U.S. Attorney Julie Hamill filed a notice of appeal in the Justice Department’s lawsuit over alleged noncitizen voters just three days after the the DOJ requested a temporary restraining order to halt ballot counting for individuals on the list of 20,000. 

Hamill wrote that the DOJ was interpreting U.S. District Court Judge David Carter’s silence as a denial of its request. 

Carter, an appointee of President Bill Clinton, had only taken on the case a day earlier and had set a hearing for Oct. 27. Earlier this year, he became the first federal judge in the country to rule against the Justice Department’s lawsuits attempting to force states to turn over sensitive voter data.

On Friday, the Justice Department filed a new motion asking Carter to block the ballot counting and requested a ruling by noon Pacific time. 

In that filing, Hamill wrote that “every minute” of ballot processing that occurs without setting aside ballots of suspected noncitizens dilutes the votes of U.S. citizens.

Case ‘exceedingly weak,’ critics say

Critics of the Justice Department’s actions argue the time crunch is largely of its own making. 

David Becker, executive director of the nonpartisan Center for Election Innovation & Research, noted during a press call Thursday that the DOJ didn’t file its lawsuit until more than a week after California began mailing ballots — and then several more days to seek a temporary restraining order.

“I think this case is exceedingly weak,” said Becker, who worked as a senior trial attorney in the Justice Department’s Voting Section during the Clinton and George W. Bush administrations.

Attorneys for California Secretary of State Shirley Weber, a Democrat, and Los Angeles Registrar-Recorder/County Clerk Dean Logan have both asked Carter to dismiss the lawsuit. 

Logan’s legal team on Wednesday wrote that Los Angeles County hasn’t changed how it conducts elections. What’s changed, they wrote, was the federal government’s posture.

“Weeks before Election Day, the United States asks this Court to intrude on the administration of an election,” Logan’s lawyers wrote.

WASHINGTON — President Donald Trump tried to maintain power following his loss in the 2020 election by exerting pressure on state election officials to, in some cases, “find” the votes.

Loyalist Republicans in Congress then attempted to deny Joe Biden the Oval Office when lawmakers gathered to certify the Electoral College, bringing to light loopholes and deficiencies in the law that could have denied voters their choice. 

Similar flaws exist for U.S. House elections. 

With concern mounting among GOP lawmakers they may lose control of that chamber following November’s midterm elections, it is not a stretch to imagine state officials could, once again, receive calls from the White House or powerful Republicans in Congress.

What’s less understood is that the House itself has the ability to investigate and potentially overturn the results of any of its 435 races. In a House narrowly controlled by one party or the other, disputes over a handful of seats could become significant. 

“The House and the Senate, they are the final judge of their own elections,” explained John C. Fortier, senior fellow at the American Enterprise Institute, a conservative think tank.

“So, in theory, if a state went through a process and counted all the votes and certified the votes and sent in the results, it still could be questioned by Congress,” he added. “The House has done this in the past. It is much less common today. There was a time in the 19th century where it became extremely common.”

Experts and officials interviewed by States Newsroom pointed to several circumstances that could occur.

State officials could hold back an election certificate, a member-elect could seek to block another member-elect from taking the oath, or legitimate challenges could occur under a federal law dealing with contested elections.

States act first

The first step after votes are counted, or in some cases recounted, is for a state’s top election official, typically a secretary of state, to certify the results and send the certificates of election to the U.S. House clerk. 

But that doesn’t always happen.

New York state election officials held back Republican Rep. Claudia Tenney’s ability to join the House following the 2020 elections amid a legal battle in an extremely close race.

It wasn’t until a state Supreme Court justice ruled in Tenney’s favor that she took her oath of office in February 2021, more than three months after the election.

Fortier detailed another particularly messy example of a disputed House race in North Carolina’s 9th Congressional District following the 2018 election.

The state board of elections opted not to quickly certify either Democrat Dan McCready or Republican Mark Harris as the winner given concerns about mail-in ballots. 

It took until late February, nearly four months after Election Day, for the board to call for a new election after Harris testified during a hearing that “his political operative orchestrated a fraudulent absentee ballot scheme,” according to an article from NC Newsline. 

That September, Republican Rep. Dan Bishop won a special election over McCready.

And while the House didn’t step in at the time, it could have. “They essentially deferred and kind of waited it out,” Fortier said. 

Neither of those holdups determined control of the House, but a few state officials deciding not to send certificates to the clerk later this year could have an impact come January.

State officials are not exempt from political influence from Washington, something that was on full display beginning in 2025 when Trump and Republicans in Congress called on state legislatures to redistrict to give them an advantage in this fall’s elections. The results have rolled out even through September.

House members can try blocking members-elect

Another potential roadblock emerges on the first day of a new Congress when any member-elect can try to block another member-elect from being sworn in. 

That happened in 2021 when Texas Republican Rep. Chip Roy objected to lawmakers from Arizona, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin taking their oaths. The Democratic-controlled House voted 371-2 to approve a resolution directing the speaker to swear in everyone. 

The House has two additional options should a member-elect challenge another member-elect taking the oath. 

The first is to “provisionally or conditionally” seat that person and refer the case to the House Administration Committee for investigation. The second is to vote to not seat anyone and refer the dispute to the panel to determine who is entitled to it, according to a report from the nonpartisan Congressional Research Service.

The report notes that “it would be under only the most exceptional circumstances for the House to refuse to seat, even provisionally, a Member holding valid election credentials from the state, and it appears that this third option has happened since 1933 only two times on the first day of the new Congress, and once during the Congress concerning a special election.”

The House voting not to seat anyone “would effectively nullify a certificate of election that was previously issued by the executive authority of the state,” according to CRS. 

How the House can probe election results

The Federal Contested Elections Act of 1969 provides another avenue for lawmakers on the House Administration Committee to investigate any election once a complaint is filed, typically by the losing party. 

This has happened dozens of times throughout the decades, including in December 2020, when Iowa Democratic candidate Rita Hart asked the House to decide whether Republican Rep. Mariannette Miller-Meeks actually won the race, triggering a months-long investigation. 

The FCEA allows the committee to “impound records, ballots, tally sheets, ballot stubs, poll books, ballot boxes, voting machines or other electronic voting systems, and irregular or defective paper and absentee ballots,” according to CRS. 

The committee has the option to use the vote count sent by the state or “conduct its own recount and make its own determinations and findings,” the CRS report states.

House members conducting a probe can even instruct states how to handle ballots.

“Where state law requires destruction of ballots after an election, the committee may notify the state election officials to preserve the ballots despite the state law,” the report says. 

The panel would eventually make a recommendation and the House would decide by a simple majority vote which candidate to seat or whether to declare the seat vacant. 

That vote is the final decision “regardless of whether or not the Member-elect had been sworn in on the first day of the new Congress,” says the report.

Decisions about how to decide any contested elections would be made by the new House that will convene in early January, not the one that will return to Capitol Hill during the lame-duck session that’s set to last several weeks in November and December. 

“It’s not as if the outgoing Congress could just make a decision as to who’s contested and who won the election,” Fortier said. “It’s the new Congress that would do that.”

But not just anyone can file a contest with the House. 

The person who challenges the results “must show that but for the voting irregularities or acts of fraud, the results of the election would have been different and the contestant would have prevailed,” according to CRS. 

Those investigations typically take months. The Iowa case of Hart v. Miller-Meeks began in December 2020 when Hart, the Democrat, filed her contest. 

The Administration Committee held a hearing in March 2021 after Miller-Meeks tried to dismiss the case. Then-Chairwoman Zoe Lofgren, D-Calif., argued against those efforts, saying “the American people deserve to know who actually won this election. And the people of Iowa’s 2nd Congressional District deserve to be represented by that person.”

The case ended several weeks later after Hart withdrew her challenge. 

‘As far as someone’s willing to burn it’ 

Casey Burgat, legislative affairs program director and associate professor at George Washington University, said while any member-elect can challenge another member-elect’s ability to take the oath on the first day of the new Congress, it is somewhat unlikely a genuine attempt is made to do that next year.

But that comes with a caveat.

“I think the prospect for the tit-for-tat or the brinkmanship goes up exponentially if it is a close majority,” he said. “That just creates an opportunity for parties to see majority status and find reasons to not seat the other side.”

Whether any potential challenge is taken seriously would likely be determined by who makes it. 

“If it’s just a flamethrower, a Chip Roy-type person, I think that’ll be discounted more than if it’s led by someone like a Mike Johnson or someone in leadership or Steve Scalise,” Burgat said. “I’ve had conversations with a lot of these members and staff of like, how far can this go. And my response to them is often, as far as someone’s willing to burn it.” 

Sarah A. Binder, senior fellow in governance studies at Brookings, said it’s unlikely that any Republican could successfully challenge a Democratic member-elect taking the oath if Democrats have a true majority and have elected their speaker.

“There have been some years where the member-elect whose seat is being challenged is prior to that told to sit down, not to stand when the rest are to be sworn in,” she said. “But other times they actually swear in everybody because your winning seat could still be contested after the swearing in.”

Then there’s the rogue clerk theory

In addition to the possibility a state official holds back an election certificate, a member-elect seeks to block another member-elect from taking the oath and legitimate challenges occur under the Federal Contested Elections Act, some Democrats have raised concerns about the clerk of the House.

The nonpartisan official’s office assembles the list of members-elect once they receive a certificate of election from a state official. And that list determines who votes for speaker, which takes place on the first day of the new Congress before any of the 435 members are actually sworn in. 

The House cannot move on to any other business until a speaker is elected. 

AEI’s Fortier said the clerk’s authority is ministerial and that whoever holds that office doesn’t really have discretion over who to add to the member-elect list once the state sends in the certificate of election. 

The clerk going rogue during the vote for speaker also is highly improbable, he said. 

“I think it is not a very likely scenario, even though I think people are thinking about it. I am not even sure it’s realistic,” Fortier said. “I think this is very difficult to imagine.”

Burgat from GWU had a similar assessment that the House clerk doesn’t hold the authority to disregard election certificates once they arrive or to try to meddle in who can vote for speaker. 

“The minute that the secretary of state or its equivalent certifies the election and transmits to the clerk, a nonpartisan position, it goes on the roll,” he said. “The politics comes in after that fact.”

The clerk’s office wrote in a statement that it “receives and verifies Certificates of Election from every state, placing on the Roll of Representatives‑elect only those individuals whose credentials show they were regularly elected.”