Everything You Need to Know as Congress Debates Electoral College Vote for President
by Fred Lucas: President Donald Trump sounded confident during a rally Monday night in Georgia about his chances for victory after the House and Senate convene a joint session Wednesday to count the Electoral College votes for president.
But the probability of altering former Vice President Joe Biden’s lead of 302 votes to Trump’s 232 votes in the Electoral College seems very low, even with the House and Senate poised to debate certification of some states for Biden amid allegations of voter fraud and election irregularities.
Thousands of Trump supporters were expected in Washington for a “Stop the Steal” rally Wednesday outside the Capitol, where the certification of votes will be debated.
Whatever happens, this will almost certainly mark the end of the tumultuous 2020 presidential election. Whether there is any chance to change the outcome, the lawmakers’ debate will offer grand political theater.
Here’s what you need to know before the big day.
1. What’s the Role of Mike Pence?
Vice President Mike Pence, in his role as president of the Senate, will preside over the joint session of Congress. What Pence can do and what he will do are becoming the biggest questions.
Article II of the Constitution and the 12th Amendment say the president of the Senate (in this case Pence) shall, in the presence of the Senate and House, “open all the certificates, and the Votes shall then be counted.”
The language of the 12th Amendment reads:
“I hope that our great vice president comes through for us. He’s a great guy,” Trump told the Georgia crowd Monday night. “Of course, if he doesn’t come through, I won’t like him quite as much. No, Mike is a great guy. He’s a great man and a smart man.”
Trump also tweeted Tuesday: “The Vice President has the power to reject fraudulently chosen electors.”
The Vice President has the power to reject fraudulently chosen electors.
— Donald J. Trump (@realDonaldTrump) January 5, 2021
The lawsuit is based on a legal theory that the Constitution grants Pence, as president of the Senate, the sole authority to determine which electors’ votes to count.
The lawsuit also argues that the Electoral Count Act of 1887, which allows Congress to legitimize electoral votes, violates the Constitution’s Electors Clause and limits or eliminates the vice president’s 12th Amendment authority to determine which slates of electors should be counted.
The U.S. District Court for the District of Columbia rejected the Gohmert suit with an opinion Monday from Judge James Boasberg, an Obama appointee, that said the Gohmert argument “lies somewhere between a willful misreading of the Constitution and fantasy.”
But the Constitution doesn’t grant the president of the Senate the authority to disqualify some votes and accept others, said Tara Ross, a constitutional lawyer and author of the book “The Indispensable Electoral College: How the Founders’ Plan Saves Our Country From Mob Rule.”
“Vice President Pence does not have the authority to intervene and decide the election,” Ross told The Daily Signal. “I agree there are some open constitutional questions about the Electoral Count Act.”
She said she fears that action by Congress could undermine the Electoral College.
“The Electoral College is about state sovereignty and how states choose a president,” Ross added. “This could open the door to full-fledged partisan fighting and states could lose their voice.
To the degree Congress is concerned about fraud, they should ask state legislatures to address this and investigate themselves.”
During a press call Tuesday, Senate President Pro Tem Charles Grassley, R-Iowa, referred to his presiding over the Senate debate when Pence is not presiding. Grassley’s remark set off another Washington minidrama when it appeared that he was saying Pence would not preside over the joint session.
But both the White House and Grassley’s office clarified that this was a reference to the Senate debate and the option to give Pence some time off.
On a weekly press call with ag reporters, @ChuckGrassley discussed his role as president pro tempore presiding over the Senate tomorrow during expected electoral college certification debate when @VP isn’t present. KEY WORDS: SENATE DEBATE— Sen. Grassley Press (@GrassleyPress) January 5, 2021
Congress passed the Electoral Count Act of 1887 in response to the aftermath of the controversial 1876 presidential election.
The law established a procedure for challenging the counting of the Electoral College votes. If an objection is signed by one House member and one senator, the joint session of Congress will adjourn and the House and Senate will separately debate the objection for two hours. After each chamber votes on the matter, the joint session will reconvene.
Rep. Mo Brooks, R-Ala., has announced that he would lead a challenge to counting electors’ votes from states where election procedures were controversial. More than 100 other House Republicans say they intend to join the objections.
Sen. Josh Hawley, R-Mo., became the first senator to announce he would join the objection, and others followed.
So far, another 11 Republican senators have said they would vote against certifying the results unless Congress agreed to an emergency 10-day audit of the election.
For the objections to change the outcome in any state, it would require a simple majority in the House and Senate. That seems unlikely, since many Senate Republicans oppose the objections, and Democrats control the House.
3. How Long Will the Debate Run?
How long the congressional debate goes depends mostly on how the lawmakers’ objections are written.
The Trump campaign brought litigation in seven states, all of which have an alternative slate of Trump electors. These states are Pennsylvania, Georgia, Michigan, Wisconsin, Nevada, Arizona, and New Mexico.
An objection could oppose the count in all, some, or one of the states, depending on how it is written, said Hans von Spakovsky, manager of the Election Law Reform Initiative at The Heritage Foundation.
So debate time in the House and Senate could be as little as two hours if the targeted states are debated together. It could go as long as 14 hours if all seven states are debated separately. That’s on top of the time it will take the joint session to certify the electors’ votes.
Procedurally speaking, each of the 50 states and the District of Columbia will be read off in alphabetical order before their results are certified.
In announcing his plan to support the House members’ objection, Hawley singled out one state.
“I cannot vote to certify the Electoral College results on January 6 without raising the fact that some states, particularly Pennsylvania, failed to follow their own state election laws,” the Missouri senator said.
4. Will Lawmakers Present Evidence?
Some House members have said they would present evidence of election irregularities. Trump indicated in a tweet Monday that evidence will be put forward Wednesday.
How can you certify an election when the numbers being certified are verifiably WRONG. You will see the real numbers tonight during my speech, but especially on JANUARY 6th. @SenTomCotton Republicans have pluses & minuses, but one thing is sure, THEY NEVER FORGET!
— Donald J. Trump (@realDonaldTrump) January 4, 2021
The Trump campaign’s legal team has presented sworn affidavits from more than 1,000 people alleging dead voters, voters from outside the election jurisdiction, voting by illegal immigrants, destruction of ballots, and other claims.
Also, state legislatures in five states have held hearings examining claims of problems with voter machines, ballots sent to vacant addresses, suitcases full of ballots, duplicate ballots, and other matters.
There has been a clear lack of curiosity from much of the mainstream media on such questions, Ross said. After the election, both Congress and state legislatures should investigate, she said.
“The problem has been a lack of transparency. All discussion about this has been shut down,” Ross said. “If it is just innuendo, bring the cameras on it and show that it’s innuendo so the public can know it’s frivolous. Don’t declare it beyond discussion.”
Shunning discussion is a recipe for causing greater suspicion among the public, Ross said, comparing the dispute this year to 2000, when Democratic presidential nominee Al Gore disputed the outcome.
“No matter who is inaugurated on Jan. 20, half the country will believe the president is illegitimate,” Ross said. “It should be more like 2000. You always saw Republican and Democratic lawyers debating with news commentators. People were upset, but the transparency helped with the acceptance.”
This is likely the final chance to present evidence, Tommy Binion, vice president for government relations at The Heritage Foundation, told “The Daily Signal Podcast” in describing the process.
“This is the moment where all of the evidence is going to be seen. There is no more time. There is no further opportunity for evidence to impact the election,” Binion said, adding:
Inauguration Day for the president is Jan. 20, and it would seem unlikely that anything could change after Congress certifies the Electoral College vote count.
However, according to the liberal news site Daily Beast, two anonymous sources “familiar with the matter” say that Trump plans to keep fighting after Wednesday. The article quotes one of the sources as claiming to have had a conversation with Trump.
After Congress certifies the Electoral College results, it’s not clear what legal avenues Trump could use to continue fighting the election outcome, Ross said.
“That would be completely unprecedented,” Ross said. “That has never been an issue before that I’m aware of.”
6. What’s Happened Before?
Even before the 1887 law, Congress ran into an unusual circumstance regarding how to certify the Electoral College count.
It had nothing to do with the outcome. President Ulysses S. Grant won a landslide reelection victory in 1872 over Horace Greeley, earning 286 electoral votes to Greeley’s 66.
However, before electors met, Greeley died. All but three of the pledged Greeley electors gave their votes to someone else. It was up to Congress how to deal with those three.
“After 1872, there was a dispute in how to count electoral votes for Horace Greeley,” Ross said. “Congress determined they would not count those votes because Greeley couldn’t be counted as a person under the Constitution.”
Only twice since the passage of the Electoral Count Act of 1887 has an objection been sustained by both a House member and senator–in 1969 and 2005.
However, after Republican victories in modern presidential races, it has become routine for House Democrats to make objections on the floor, rarely gaining a Senate sponsor.
On Jan. 6, 2017, House Democrats made 11 objections to Trump’s victory over Democrat Hillary Clinton.
Biden, then the outgoing vice president, presided over the session in his role as Senate president and asked whether any objection had a Senate sponsor. None did. So the joint session continued.
After the votes were counted, Biden said, “It’s over,” making Trump’s victory official.
In 2000, Gore, then vice president, conceded the presidential election to then-Texas Gov. George W. Bush after the Supreme Court ruled against his campaign’s efforts to win Florida. The Electoral College voted for Bush.
However, more than a dozen House Democrats made 20 separate objections during the joint session on Jan. 6, 2001—20 years ago to the day. Gore, presiding over the session, asked each time for a Senate sponsor and each time got no one. Gore gaveled out the session and certified his opponent Bush as the winner.
In 2005, Democrats alleged voting irregularities in Ohio after Bush won reelection in 2004 over then-Sen. John Kerry, D-Mass.
Then-Rep. Stephanie Tubbs Jones, D-Ohio, and then-Sen. Barbara Boxer, D-Calif., objected in writing to Ohio’s electoral votes for Bush. Boxer called that objection her proudest moment on the Senate floor, according to CNN.
“Our intent was not to overturn the election in any way,” Boxer said. “Our intent was to focus on voter suppression in Ohio.”
Both chambers withdrew to consider the objection and then, in separate votes, the House and Senate each rejected the objection.
The Senate voted 74-1 against the 2005 challenge, the House 267-31.
At the time, Republicans controlled both the House and Senate. Then-House Minority Leader Nancy Pelosi, D-Calif., praised the effort.
“This is their only opportunity to have this debate while the country is listening, and it is appropriate to do so. If there were other venues of this caliber, we would have taken that opportunity,” Pelosi, now House speaker, said in 2005. “But this is the opportunity. We have a responsibility to take advantage of it.”
In the 1968 presidential election, Republican Richard Nixon defeated Democrat Hubert Humphrey and independent George Wallace, a rare third-party candidate to win some electoral votes.
On Jan. 6, 1969, then-Rep. James O’Hara, D-Mich., and then-Sen. Edmund S. Muskie, D-Maine, objected in writing to counting the vote of a faithless elector from North Carolina who voted for Wallace even though Nixon had won the state.
The Senate voted 58-33 against the objection, the House 228-70.
At the time, Democrats controlled both the House and Senate.
When the joint session resumed, the challenged electoral vote was counted for Wallace, a former Democrat, who won a total of 46 electoral votes after carrying five states.
Simply reaching a debate in Congress is tough, Binion noted, and changing the result of a presidential election is even tougher.
“It’s a pretty high hurdle to clear that you need a member of the House and a member of the Senate together to object in writing, and then both chambers need to debate and vote on that,” Binion said on the podcast.
“So, it’s not surprising that it has happened before. It’s not surprising that it’s happening now, and we should all be comforted by the fact that if the election results are going to be changed, passing that hurdle, it’s an extremely high bar.”
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Fred Lucas is chief national affairs correspondent for The Daily Signal.
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