In Deciding The 2020 Election, Congress Will Get The Last Word

The Senate and House will meet in a joint session on Jan. 6, a day the late Supreme Court Justice Ruth Bader Ginsburg labeled the date of “ultimate significance” in our electoral process, to count the recently cast electoral votes. What happens that day will determine the outcome of the presidential election.

The Procedure

The Electoral Count Act provides that after the electors in each state and the District of Columbia vote on Dec. 14, they must sign a certificate of their votes that is then sealed and sent to the president of the Senate.

At 1:00 p.m. on Jan. 6, a joint session of Congress convenes, at which the presiding officer opens the states’ certificates in alphabetical order. Each certificate is then presented to “tellers” who read the votes aloud, after which the presiding officer invites objections.

Under the law, objections must be presented in writing and signed by at least one senator and one representative. When a properly made objection is received, the separate houses retreat to their respective chambers for two hours of debate and a vote on whether to count the votes in question.

The chambers must vote separately on each objection. If a majority in each supports the objection, the votes in question are excluded. If the objection garners the support of less than a majority in either chamber, it fails, and the challenged votes are counted.

Legal Basis for Objections

The Electoral Count Act specifies that objections may be brought if an elector’s appointment was not “lawfully certified” by that state’s governor. Here, violations of equal protection and the Constitution’s electors clause, along with repeated instances of documented fraud, undermined the integrity of the elections in multiple swing states that ultimately declared former Vice President Joe Biden the winner, despite early commanding leads by President Donald Trump.

Because those final tallies were polluted by illegitimate votes, the electors pledged to Biden were not legally appointed, and therefore were not lawfully certified. Republicans in the House and Senate should raise these objections.

Historical Precedent

While objections to electoral votes are infrequent, they are not unprecedented. On prior occasions where objections were made, Democrats lodged them.

In 1877,  Democrats challenged the entire electoral delegations from Florida, Louisiana, South Carolina, Vermont, and Wisconsin — whose votes were won by Republican Rutherford B. Hayes.

In 1969, Sen. Edmund Muskie of Maine and Rep. James O’Hara of Michigan, both Democrats, objected to counting the vote of a faithless elector from North Carolina.

In 2001, members of the Congressional Black Caucus, also all Democrats, attempted to block Florida’s electoral votes, which had gone to Republican George W. Bush, from being counted, claiming “overwhelming evidence of official misconduct” and “deliberate fraud.”

Four years later, after election results indicated Bush had won reelection against Democratic challenger John Kerry, Sen. Barbara Boxer and Rep. Stephanie Tubbs Jones, both Democrats, objected to Ohio’s electoral votes, which Bush had won, claiming widespread “irregularities.”

Most recently, at the 2017 joint session after the Trump-Clinton election contest, several Democratic House members challenged the results, claiming a “widespread violation of the law.”

What to Expect

While the joint session has historically been a mere formality, this year is different.

Already, Alabama Rep. Mo Brooks has said he will object to the electoral votes from swing states where the elections were contaminated by unconstitutional conduct and fraud. Rep. Matt Gaetz is also considering objecting. We can expect others, such as Rep. Mike Kelly from Pennsylvania, who is the plaintiff in one of the election lawsuits before the Supreme Court, to join as well.

For members to avoid being gaveled down, a senator must join their objections. While no one from the upper chamber has yet stepped up, it’s possible someone will, especially 2024 presidential aspirants looking to raise their national profile and curry favor with Trump’s loyalists. Josh Hawley of Missouri, Ted Cruz of Texas, and Rand Paul of Kentucky have expressed openness to the idea.

The real challenge, of course, will be getting a majority of both houses to support the objections. Although Democrats have the majority in the House, it’s the slimmest one in two decades.

In the Senate, it comes down to Georgia. If either Kelly Loeffler or David Perdue are reelected, the GOP will retain its control of that chamber. Those runoffs will take place Jan. 5, the day before the joint session. It is therefore imperative that these Republicans be reelected by decisive margins, so the outcome of those elections and therefore the partisan division of the Senate is not in question at the time the Senate must vote on objections.

Importantly, congressional decisions to strike electors’ votes are immune from court review. According to John Tyler Morgan, a Democratic senator in the Congress that passed the Electoral Count Act in 1887, Congress not only has the power to “vote down the voice of the State’s electors,” but once they do, “the power to revoke” that decision “passes beyond human control.”

If enough electoral votes are eliminated to prevent either candidate from obtaining a majority, the “contingent election” provision of the 12th Amendment would kick in, leaving the House of Representatives to choose the president — something that has occurred just once before, in 1825. Each state delegation would get one vote, and as Republicans control 26 of the 50 state delegations, such a scenario would likely result in Trump’s reelection.

In “Federalist 68,” Alexander Hamilton urged us to place “every practicable obstacle” against “cabal … and corruption,” which are the “most deadly adversaries of republican government.” On Jan. 6, Congress can do so: It can strike the electoral votes from states where the contests were irredeemably compromised by fraud, illegal voting, and unconstitutionality.