The presidential election of 2020 comes to a head on Wednesday in the nation’s capital as a joint session of Congress meets to examine the various state certifications of electoral votes submitted as required by the U.S. Constitution, the 12th Amendment and the Electoral Count Act of 1887. The news has been replete with reports of Republicans in both the House and Senate preparing their objections to the results from several swing states where allegations of election fraud and other irregularities have surfaced.
But what exactly will happen when Congress meets? Is the Constitution in jeopardy, as some dire warnings have suggested? Will the electoral victory be awarded to Joe Biden, or is there still a path to victory for President Donald Trump when the joint session performs its constitutional duties?
The process, beginning at 1 p.m. ET on January 6, has been followed in every presidential election for over 130 years. A dispute over the rightful winner of the 1876 election between Rutherford B. Hayes and James Tilden led Congress to consider ways to avoid such problems in the future, ultimately resulting in the Electoral Count Act in 1887.
Senators will join with Representatives on the House floor at the appointed hour, with Vice President Mike Pence presiding. As described here and here, the state electoral vote totals will be opened and announced in alphabetical order. If no objections are made by anyone, Joe Biden and Kamala Harris would be declared the next President and Vice President, as they received 306 electoral votes.
However, if at least one representative and one senator voice an objection to any given state’s electoral result, each chamber must meet separately to debate the objections and take a vote to uphold or reject them. By law each chamber must complete that process for each objection within two hours, at which time they will re-assemble in the joint session to report those results.
If both chambers uphold an objection to a state’s electoral vote count, that state’s totals will not be counted. If only one chamber upholds an objection while the other rejects it, that state’s electoral vote count will stand. When all the states’ electoral votes are then added up, the candidate who reaches 270 votes will be declared the winner. If no candidate receives at least 270 votes, the election of president will then be decided by the House of Representatives, with each state delegation casting one vote. The Senate would elect the Vice President, but contrary to the procedure in the House, each senator is allowed to vote.
But what about promises of at least thirteen senators, including Ted Cruz, R-Texas, and Josh Hawley, R-Mo., and two dozen House members to object to at least several state electoral vote results? Will those affect the ultimate outcome of the election?
While the objections could delay the joint session and the ultimate decision of Congress into Thursday, the short answer is that none of the objections will have enough votes to carry either chamber, and they need both. The Democrat majority in the House guarantees that no objection can succeed there, and there are not enough Republicans in the Senate who support those objections to provide even a slim chance for success even there.
According to a lengthy Facebook post by Sasse, he believes that there has been voter fraud in the election, but not enough to swing any particular state’s results, let alone the several states whose results would need to flip in order to change the results of the election.
There is another theory making the rounds that Vice President Mike Pence somehow has the constitutional authority to reject any particular state’s electoral vote certification. Rep. Louie Gohmert, R-Texas, even filed a federal lawsuit in Texas attempting to validate that authority. The lawsuit was thrown out by the judge before it went anywhere, and an attempt to appeal to the 5th U.S. Circuit Court of Appeals was also rejected.
The Wednesday joint session of Congress promises fireworks, but ultimately you should expect the result to be the confirmation of the Electoral College results and the official designation of Joe Biden as President-elect and Kamala Harris as Vice President-elect.
Photo from Graeme Sloan/REUTERS