The polls closed on Nov. 3, but the midterm elections are far from settled: election officials and volunteers are still working through tens of millions of ballots that will decide who takes House and Senate seats in January.
No single national timeline governs what comes next. Each state writes its own rules and certification deadlines, and in most of them the counting and certifying alone take a week at minimum. Congress then applies its own procedures, and under the Constitution the House and Senate decide for themselves whom to seat.
Kyle Yoder, who directs research at the Center for Election Innovation & Research, said that slow, careful pace is what voters should hope for. The most common misunderstanding he encounters, he said, is the belief that returns shown on television on election night are final.
Recounts and who certifies
Once a first tally is certified, a tight contest may go to a recount. Some states order one automatically when the margin drops below a set percentage. In others, the second-place finisher usually makes the request, though certain states let voters or political parties ask too.
Yoder said that in many states, neither recounts nor court challenges can start until results are certified.
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.
Kyle Yoder, research director, Center for Election Innovation & Research
How long a recount may run depends on the state, but litigation can drag the process out, and in some situations Congress can conduct a recount of its own.
When seats sit empty
Who signs off on the winner also varies. James Alcorn, senior director of the Election Law Program at William & Mary Law School, said statewide contests are generally certified by a secretary of state or a state elections board, while other races, including some for Congress, may be certified locally.
Officials rarely fail to send a certificate of election before a new Congress convenes, and the few modern cases stemmed from lawsuits. New York Republican Claudia Tenney was not sworn in until February 2021, more than three months after her election, after a state Supreme Court justice ordered certification and her opponent chose not to appeal.
Inside the two chambers
In North Carolina's 9th Congressional District, the state elections board declined to certify either candidate after a bitterly disputed 2018 race and called a new election, leaving the seat vacant from early January to September. Democrat Al Franken waited nearly eight months after the 2008 election to join the Senate, as a fight over the count went to the Minnesota Supreme Court.
On the House side, the clerk relies on the certificates to build the roster of members-elect who may vote for Speaker on opening day, when every lawmaker typically takes the oath. The Senate, a continuing body, swears in only its newly elected or reelected members, roughly a third of the chamber, after certificates reach the Secretary of the Senate.
Holding a certificate does not guarantee a seat. The Constitution makes each chamber the judge of its own members' elections, and a 1960s law, the Federal Contested Elections Act, lets the House Administration Committee investigate certain races, accept the certified count or recount, and recommend a winner for a full House majority vote. The law does not cover the Senate.
Such challenges seldom succeed. After the 2020 election, Iowa Democrat Rita Hart asked the House to review Republican Rep. Mariannette Miller-Meeks' victory, then withdrew the complaint in April 2021 after months of committee investigation. The Congressional Research Service has found these contests rarely change results.
