How the counting of Electoral College votes could turn from dull to dramatic
President-elect Joe Biden’s victory is expected to be confirmed, but only after hours of debate as GOP lawmakers contest results
The final count and confirmation of the 2020 Electoral College tally is typically an unremarkable and ceremonial act of governance.
But that won’t likely be the case Wednesday.
President-elect Joe Biden and Vice President-elect Kamala Harris will eventually be confirmed as the winners of November’s presidential election, but deliberations are expected to take hours — potentially lasting into Thursday — as some GOP lawmakers make their final stand in contesting the Democrat’s clear victory.
Around a dozen Senate Republicans and upwards of 140 GOP members of the House are expected to challenge the Electoral College results, The Hill reported.
Biden won the election with 306 to 232 Electoral College votes, and the results have been certified by each state. Republican objectors are protesting the accuracy of some states’ ballot counting, largely based on unfounded claims of election fraud perpetuated by President Donald Trump, who lost the popular vote and Electoral College.
So what happens on Jan. 6?
A joint session of the House and Senate, presided over by Vice President Mike Pence, will meet at 1 p.m. Eastern Standard Time in the House chamber to count each state’s electors, MarketWatch reported. Pence will open each state’s certified electoral college certifications, which will then be read by a clerk.
The Vice President has the power to reject fraudulently chosen electors.— Donald J. Trump (@realDonaldTrump) January 5, 2021
Trump tweeted Tuesday that Pence “has the power to reject fraudulently chosen electors,” — referring to the slate of electors submitted by each state. But the vice president, in the procedural role of opening the certifications and announcing a presidential victor, does not have the power to toss a state’s Electoral College vote, The New York Times reported.
“The only responsibility and power of the vice president under the Constitution is to faithfully count the Electoral College votes as they have been cast,” said former United States Court of Appeals judge and leading conservative legal scholar J. Michael Luttig, according to the Times. “The Constitution does not empower the vice president to alter in any way the votes that have been cast, either by rejecting certain votes or otherwise.”
Over the weekend, both a federal judge and the Fifth Circuit Court of Appeals dismissed a lawsuit filed by Texas GOP Congressman Louie Gohmert. The Republican argued the vice president has “sole discretion to determine which among competing slates of electors may be counted,” NPR reported. The case was tossed by both courts on the grounds that Gohmert didn’t have standing.
While Pence will be in an awkward spot, it’s not the first time vice presidents have had to announce their own or their party’s loss at the conclusion of the count.
Examples include Vice President Richard Nixon declaring John F. Kennedy president in 1961 and later in 2001 when Vice President Al Gore confirmed that President George W. Bush had narrowly won the White House after contested results were appealed to the U.S. Supreme Court, NPR reported.
Despite Trump’s expectation that Pence can reject a state’s electoral votes, the power of contesting electors lies solely in Congress.
“If both a representative and a senator object to a slate of electors, the joint session will recess and both the Senate and House of Representatives will debate the question for a maximum of two hours,” according to MarketWatch. After debating each of the objections, which at two hours a piece could last into Thursday, each chamber will hold a majority vote on whether or not to accept the rejection, MarketWatch reported.
Congressional dissension to election results are also not uncommon, according to the Times — including in 2017 when three House Democrats contested Trump’s victory — but members of the both chambers objecting and triggering debate is rare. The most recent joint objection happened in 2005 when a Democratic senator and congresswoman contested Ohio’s 20 electoral votes for Bush — forcing a two-hour debate before confirming the incumbent president.
Missouri Republican Sen. Josh Hawley is one of the Republicans leading a charge to contest the election, but he said he isn’t trying to overturn the presidential election results, Politico reported.
“Congress is directed under the 12th Amendment to count the electoral votes,” Hawley said Fox News Monday night. “There is a right to object, there’s a right to be heard.”
Objections in both chambers are not expected find enough support to succeed.
Senate Majority Leader Mitch McConnell, R-Ky., was personally against efforts to object to the Electoral College tally but has encourage Senate Republicans to vote their conscience, according to Politico.
“If Congress purported to overturn the results of the electoral college, it would not only exceed its power, but also establish unwise precedents,” wrote GOP Sen. Tom Cotton in an Arkansas Democratic Gazette op-ed Tuesday. The Republican said the precedent would “take away the power to choose the president from the people and place it in the hands of whichever party controls Congress” and “would imperil the electoral college, which gives small states like Arkansas a voice in presidential elections.”
Trump has unsuccessfully challenged the results of the election in eight states and dozens of courts and has ultimately been dealt more than 60 legal losses regarding the election, according to The New York Times.