Certified versus won: what the record actually says about Biden's 2020 election

A verbal distinction has become a standard answer in Washington confirmation hearings: that Joe Biden was certified as president, rather than that Joe Biden won the 2020 election. Speaking on the BBC's Global News Podcast with presenter Celia Hatton, North America correspondent Anthony Zurcher said that when Trump nominees for senior administration posts get on the Hill, they are asked by Democrats, "Who won the 2020 presidential election?" and that "almost to a person" they "refuse to to speak on the record to that" and "not directly answer that question."

Zurcher singled out one recent example. "The most recently, the nominee for director of national intelligence, uh he he was unwilling to say that Joe Biden won. He just said Joe Biden was certified as as the as the the president. And that was about as far as he was willing to go." The BBC segment did not name that nominee, and US In News could not confirm the name from the retrieved material. No nominee's testimony has been independently verified here; the BBC segment is the sole sourcing for the hearing-room pattern described.

The distinction implies that certification is a bureaucratic formality separable from the underlying result — that someone can be certified without having won. The public record maintained by the National Archives and Records Administration, and the reform Congress enacted in December 2022, describe a process in which those are not two different things.

What the certified record says

NARA, the statutory custodian of Electoral College documents, records the 2020 result as 306 electoral votes for Biden and 232 for Trump, out of 538 with 270 needed to win. The same NARA page records the state-level splits: Maine's four electoral votes were split, with three for Biden and one for Trump, and Nebraska's five were split, with four for Trump and one for Biden. NARA notes that in each case it was "only the second time since adopting this system" that the state's votes divided between the two major party tickets.

NARA also records what happened when Congress met to count. "During the electoral vote count, objections were filed with respect to the Arizona and Pennsylvania electoral votes, but neither House sustained the objection, so all votes were counted." The count did not finish on schedule: "Due to violent unrest in and around the Capitol, the electoral results were not certified until 3:44 a.m., the morning of January 7, 2021."

Certification is the counting of the votes

NARA's explanation of the process describes certification as a chain of documents recording an outcome, not a separate judgment about it. After the general election, "your State's Executive prepares a Certificate of Ascertainment listing the names of all the individuals on the slates for each candidate." Then "The electors meet in their respective States, where they cast their votes for President and Vice President on separate ballots," and those votes are "recorded on a Certificate of Vote, which is prepared at the meeting by the electors." Finally, "Each State's electoral votes are counted in a joint session of Congress on the 6th of January in the year following the meeting of the electors."

On that reading there is little space between certified and won. The certificates record who received the electoral votes; the joint session counts them. A candidate certified with 306 electoral votes is, in the mechanism NARA describes, the candidate who received the majority the process exists to identify.

Congress narrowed the discretion

The Electoral Count Reform and Presidential Transition Improvement Act of 2022 was enacted as Division P of the Consolidated Appropriations Act, 2023, Public Law 117-328, approved December 29, 2022. Division P states that it "may be cited as the 'Electoral Count Reform and Presidential Transition Improvement Act of 2022'." It rewrote provisions of Title 3 of the U.S. Code governing the counting of electoral votes. On the role of the presiding officer, the enacted text reads:

The President of the Senate shall have no power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes over the proper certificate of ascertainment of appointment of electors, the validity of electors, or the votes of electors.

The same statute raised the bar for challenging a state's votes. An objection is not in order unless it "is signed by at least one-fifth of the Senators duly chosen and sworn and one-fifth of the Members of the House of Representatives duly chosen and sworn." It also fixed the state-level paperwork deadline, providing that "Not later than the date that is 6 days before the time fixed for the meeting of the electors, the executive of each State shall issue a certificate of ascertainment of appointment of electors." A certificate issued under that subsection "shall be treated as conclusive in Congress with respect to the determination of electors appointed by the State."

What the hedge signals

The reform law makes the presiding officer's role explicitly limited and the objection threshold explicitly numerical, and it makes a properly issued state certificate conclusive in Congress. Those provisions leave the certification step closer to a count than to a decision. That is what makes the hearing-room formula difficult to sustain on its own terms: if certification carries no independent judgment, then saying a candidate was only certified concedes the electoral arithmetic while declining to state the conclusion that follows from it.

Zurcher framed the pattern as evidence of the political environment rather than of any factual dispute. He contrasted 2020, when Trump "had people in his administration who disagreed with him," citing "William Barr, the Attorney General, who said that these allegations of of voter fraud, widespread voter fraud was essentially BS," with the present, saying Trump is now "surrounded by people in his administration who either agree with him that election fraud is a major concern or at the very least are willing to echo his his statements about calling into question past election results."

US In News compiled this account from the BBC Global News Podcast segment and from primary records published by the National Archives and Records Administration and the U.S. Government Publishing Office. Electoral College figures are as recorded by NARA. Statutory language is quoted from the enacted text of Public Law 117-328 and from Title 3 of the U.S. Code as published by the Office of the Law Revision Counsel.