Electoral College is last long-shot chance for Trump allies to challenge election results
President Trump's campaign and his allies' litany of legal challenges to the 2020 presidential election have not succeeded in changing the results of the election. But two weeks before inauguration, Republican lawmakers who have yet to acknowledge President-elect Joe Biden's victory will have one last long-shot chance to challenge the outcome showing Mr. Biden won 306 electoral votes to Mr. Trump's 232.
Tuesday marked "safe harbor" day — election results certified by states by this date are viewed as final and any subsequent court challenges are almost certain to be denied. On December 14, state electors will meet and cast their ballots. President Trump has in recent weeks summoned state leaders to the White House with the apparent aim of pressuring them to defy the will of voters and seat their own electors. No legislature has said it would replace its electors.
There remains one last-ditch chance for electoral votes to be tossed. On January 6, the Senate and the House will convene to count the electoral votes and officially declare the winner of the election. The joint session of Congress is required by law to ratify presidential results, but also allows "members to object to the returns from any individual state as they are announced," according to the Congressional Research Service (CRS).
Procedure calls for Vice President Pence to open each state's "certificate of ascertainment" — documents prepared by the state after it has completed its vote count and ascertained the official results. He will then present the certificate to four "tellers," who announce result tallies. Once a candidate reaches 270 electoral college votes, Pence will declare the winner.
Lawmakers may object to the results — even if it's not their home state — leaving the door open for representatives who support Mr. Trump's unproven claims of widespread election fraud to interrupt the typically ceremonial process.
According to a Washington Post survey, only 25 congressional Republicans have acknowledged President-elect Biden's victory. And 222 Republicans — in the House and Senate — will not say who won the election. Some may lodge their objections during the January 6 session. Alabama Congressman Mo Brooks has already said he would challenge Georgia and Pennsylvania's results, claiming flawed election systems, Politico first reported.
Utah GOP Senator Mitt Romney called the idea of a congressional challenge to the Electoral College "madness" on Tuesday. "We have a process," he said. "Recounts are appropriate. Going to the court is appropriate. Pursuing every legal avenue is appropriate. But trying to get electors not to do what the people voted to do is madness."
The objections only carry weight if they're signed by both a member of the House and Senate. "Objections to individual state returns must be made in writing by at least one Member each of the Senate and House of Representatives," according to CRS. Together, two Trump allies from separate houses, such as Congressman Matt Gaetz and Senator Ted Cruz, could object, for instance.
In that case, "the joint session recesses and the two houses separate and debate the question in their respective chambers for a maximum of two hours," according to CRS. Under federal law, each session cannot last more than two hours, "and no member of either house may speak for more than five minutes."
"The two houses then vote separately to accept or reject the objection," if both the Senate and the House agree, then that state's votes are tossed and the threshold to electoral victory would shrink. The House is still controlled by Democrats, albeit by a slimmer margin, so even if the GOP-controlled Senate were to reject a state, there's essentially no chance that the House would. According to CRS, lawmakers can object to individual electoral votes and state returns as a whole.
Justin Levitt, a constitutional law expert and professor at Loyola Law School, said it's "simply not conceivable" that either chamber would reject any of the electoral votes "because there is no reason to reject any of the votes." So far, there are no GOP senators who have said they would join Brooks' challenge.
Votes have been recounted and certified in several battleground states that President Trump continues to contest. Georgia has now reconfirmed Biden's victory for the third time, and, after completing a state canvass and determination of the local recounts, the Wisconsin Election Commission confirmed his win in the state last week.
Levitt called any objections on January 6 simply a chance for "political theater." Jason Harrow, executive director and chief counsel at non-profit Equal Citizens, said there are no grounds for an objection because all 50 states have certified their election results, and any objection "will only serve to delay." Hawaii certified its election results on Tuesday, The Associated Press reports, making the 50th state the last to do so.
"There could be shenanigans on January 6, but I think that they're theater," Harrow said, echoing Levitt. If objections are voiced, it wouldn't be the first time in recent memory.
In the 2017 joint session confirming President Trump's electoral college victory, Democratic House members, led by Sheila Jackson Lee of Texas and Barbara Lee of California, challenged the results, only to be foiled by then-Vice President Biden.
Massachusetts Congressman Jim McGovern objected to Alabama's results on the grounds that its electors were not lawfully certified, "especially given the confirmed and illegal activities engaged by the government of Russia, designed to interfere with our election and widespread violations of the voting rights act that unlawfully suppressed thousands of votes in the state of Alabama."
Mr. Biden quickly shot down the objection by asking if its written form had been signed by both a member of the House and Senate.
When McGovern confirmed that he did not have a senator's support for the challenge, Biden responded, "In that case the objection cannot be entertained," which prompted applause from Republican lawmakers.
Several other Democratic lawmakers lodged objections — all unsuccessful — because they, too, did not meet the two-chamber requirement. "It is over," Biden said to Representative Pramila Jayapal after she could not produce a senator's signature, drawing a standing ovation from Republicans.
An objection has only been successfully brought to debate twice, after the 1968 and 2004 elections, and both were voted down, according to Harrow. The first was spurred by an unfaithful elector, and the second began as a challenge from Democrats.
Claiming widespread irregularities in the race between President George W. Bush and Democratic opponent John Kerry, a group of lawmakers objected to Ohio's 20 crucial electoral votes, potentially putting the election in the balance. Kerry himself did not support the effort. "While I am deeply concerned about the issues being highlighted by my colleagues in Congress and citizens across the country and support their efforts to highlight the need to ensure voting rights," Mr. Kerry said, the New York Times reported at the time, "I will not be joining the protest of the Ohio electors."
President Trump tweeted support for Brooks after his announcement that he would challenge battleground states' electoral votes.
The statute allowing objection, outlined in the Electoral Count Act, exists because of another contested election, explained Lawrence Lessig, the Roy L. Furman Professor of Law and Leadership at Harvard Law School. In the 1876 presidential election, three states submitted competing slates of electors, with each candidate "claiming victory in violent and confused elections," according to the U.S. House Archives.
To settle the dispute, Congress created an "Electoral Commission: a bipartisan committee of House Members, Senators, and Supreme Court Justices who would determine the final disposition of the yet-unassigned electoral votes." The New York Times reported at the time that "there was a great desire to witness a fair count, and curiosity was increased by the expectation that the new law would afford some new diversion to the formality of the counting."
Over a hundred years later, Congress is still charged with the ultimate count of the electoral votes, practically guaranteeing some politics in the process, usually quickly dispensed with.
"We do not have one presidential election on November 3, we have 51 — 50 states and the District of Columbia. You have to think about it that way," Harrow said. "There's no absolute uniformity, we just do the best we can."
