With President Trump’s campaign threatening lawsuits, it is unclear when GSA would grant access to full transition resources.
The major news outlets on Saturday morning declared former Vice President Joe Biden the victor of the presidential election, but the transition process cannot formally begin until the head of the General Services Administration gives the green light.
Although the final count was still being tallied over the weekend in several battleground states, Biden’s win in Pennsylvania with its 20 electoral college votes ensured he would prevail. Nonetheless, President Trump issued a statement disputing the call and said, “Beginning Monday, our campaign will start prosecuting our case in court to ensure election laws are fully upheld and the rightful winner is seated.”
The Electoral College is set to meet on December 14 and Inauguration Day is January 20.
While the Biden team has been working with the Trump administration for months on the transition and launched its transition website on Wednesday, it does not yet have access to all the transition resources the president elect is entitled to—that determination will be made by GSA Administrator Emily Murphy.
“In accordance with the Presidential Transition Act of 1963, as amended, the GSA administrator ascertains the apparent successful candidate once a winner is clear based on the process laid out in the Constitution,” a GSA spokesperson told Government Executive on Friday. “The administrator’s ascertainment is done for the purposes of making services provided by the [transition act] available. Until an ascertainment is made, the statute allows for the Biden transition team to continue to receive the pre-elect services from the government (e.g., limited office space, computers, background investigations for security clearances). GSA has met all statutory requirements under the [transition act] for this election cycle and will continue to do so.”
Post-election activities for an incoming administration include: sending agency review teams to visit the agencies, making personnel and Cabinet appointment decisions, and cultivating policy and management agendas, as the nonprofit Partnership for Public Service outlined in its 2020 transition guide.
GSA would need to ascertain a winner before Biden could send teams into the agencies, obtain briefing books prepared mainly by career civil servants and receive access to certain facilities and funds. In its required report to Congress six months out from the election, GSA noted it requested $9.9 million for transition-related activities ($6.3 million of which is designated for a potential new administration), which was included in the continuing resolution enacted on Sept. 30. GSA manages the funds on behalf of the incoming administration, but the funding would become available to Biden only after “the administrator ascertains an apparent winner of the general election that is not the incumbent,” said GSA.
“There don’t seem to be standards for how and when [the ascertainment] needs to happen,” Don Kettl, the Sid Richardson professor at the University of Texas at Austin’s Lyndon B. Johnson School of Public Affairs, told Government Executive. “GSA has been supporting the candidates up to Election Day. The government’s support of the transition, however, can’t begin until the GSA administrator authorizes it.”
He continued, “Given the fact that there’s such discretion in the process, the core question is this: Will the administrator turn on the transition as soon as the networks call the election? If the networks call Biden as the winner, will the administrator launch the transition if the case is still in the courts? Or might the administrator, perhaps, wait until the Electoral College meets and decides, on the grounds that the decision would be contested until that vote is taken?”
Laws have been enacted over the last 20 years to give candidates more support ahead of the election and allowed for the Biden team to continue its transition work without being declared the winner on Tuesday night. Many experts and former transition officials told Government Executive they believe his team will be ready if he wins.
A Potentially Tricky Decision
GSA Administrator Emily Murphy was confirmed unanimously in December 2017 and has since been in charge of overseeing 11,200 employees nationwide, over 370 million square feet of government real estate and about $75 billion in annual contracts. She’s come under fire from House Democrats for GSA allegedly having relaxed oversight of the Trump International Hotel in Washington, D.C., which is in a GSA-leased building, and her involvement with the White House in the controversial decisions about the FBI’s new headquarters.
There was similar attention about GSA’s role in the transition process in 2016 when Trump suggested before winning that he might contest the results of the election. Additionally, in 2000––the last time there was a delay in presidential election results––lawmakers grappled with the same questions during a hearing on December 4, 2000, eight days before the Supreme Court declared George W. Bush the winner.
“The outcome of this  election remains in doubt due to the fact that both campaigns have brought forth legal cases that are pending in both state and federal courts,” said then-Rep. Jim Turner, R-Texas. “I fully appreciate the need for our next president-elect to begin a comprehensive transition to ensure that government operations continue running smoothly, yet we should not allow haste to distort our view or our implementation of the Presidential Transition Act. If the administrator of the GSA were to incorrectly release funds to one campaign under the act, aside from breaking the law, it could result in a loss of public funds, waste, duplication, diminished credibility for the winner and a breach of proprietary information.”
GSA ended up waiting until December 14, 2000, to turn over the keys and funds—after the Supreme Court ruled in favor of the Republicans and Democratic candidate Al Gore had conceded.
Besides the question of when the transition would officially begin if Biden wins, there are also concerns about how much the Trump administration would cooperate with a potential incoming Biden administration.
The Trump administration met its statutory deadlines ahead of the election, but in September Trump did not commit to a peaceful transfer of power (asserting his false claims that vote-by-mail is susceptible to widespread fraud) and at his recent rallies indicated he wouldn’t cooperate with the Biden team on a potential transition. As the vote counting continues, he has said Democrats are engaging in fraud and “stealing” the election from him, though he has not advanced specific and credible claims of improprieties.