Can Congress overturn the Electoral College results? Probably not
By Nicholas Fandos
The Electoral College’s certification Monday of President-elect Joe Biden’s victory will leave just one final venue for President Donald Trump and his supporters to challenge the results of the 2020 election: a joint session of Congress in January.
Every four years, the House and Senate come together to formally tabulate the electoral votes and raise any final concerns about the results. Normally, it is a perfunctory confirmation of the Electoral College vote. But this year, some of the president’s most strident supporters are threatening to transform it into a messy last stand by objecting to the results.
They are all but certain to fail, but not before a potentially divisive spectacle on the floor of the House that could thrust Vice President Mike Pence into the politically perilous position of confirming that Trump lost. Here’s how the process works.
The Constitution gives Congress the final say in the election.
When the Electoral College meets Monday, each state will formally cast its electoral votes for president. Biden is expected to receive 306 to Trump’s 232, making him the winner.
But the Constitution leaves it up to Congress to make the results final shortly before Inauguration Day. Article II, Section 1 says, “The president of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted.”
To that end, on Jan. 6, envelopes containing certificates showing the electoral results from all 50 states will be carried into the House chamber inside two bound mahogany boxes that date from the 19th century. Representatives of the newly sworn-in House and Senate, called “tellers” for the occasion, will pull them out one by one to determine whether each “seems to be regular in form and authentic” and present them to the president of the Senate — in this case, Pence — for inspection and approval.
Lawmakers can object to any state’s results, but there is a high bar for rejection.
Congress has long interpreted the constitutional language to mean that lawmakers can lodge objections to the results as they are tallied. The current process was circumscribed in the Electoral Count Act of 1887.
It says that as the tellers read through the electoral results state by state, members of the House and Senate can submit objections in writing to a given state’s results. The objections only hold weight if they are co-signed by at least one member of each chamber; if not, they fail and the session quickly moves on.
It is not uncommon for a member of just one chamber to submit an objection as an act of protest. It happened most recently in 2017, when several Democrats objected to Trump’s win in key states, based on Russian election interference. But Trump’s opponent, Hillary Clinton, had already conceded and no Democratic senator joined the effort, so the objections were quickly rejected.
Instances of a House member and a senator teaming up are more rare and last took place in 2005. If it occurred, the joint session would immediately pause so lawmakers could go back to their respective chambers to debate the objection for up to two hours. They would then vote on whether to toss out the electoral results of the state in question. Both chambers would have to agree to reject the votes, something that has not happened since the Reconstruction era.
“By ensuring that both chambers must reject a submission, you reduce the risk of Congress going rogue electorally and repudiating the results of a state,” said Edward B. Foley, a constitutional law professor at Ohio State University who studies the electoral process.
Win or lose, Trump’s allies can succeed in casting a shadow on Biden’s victory.
Trump’s allies, led by Rep. Mo Brooks of Alabama, have their sights set on challenging five states — Arizona, Pennsylvania, Nevada, Georgia and Wisconsin — where they claim that widespread voting fraud occurred, despite the fact that all five states have certified that the results are valid and there is no evidence of any widespread impropriety.
The key will be recruiting a Republican senator to join them, and so far none has publicly committed to doing so. Without a senator, their efforts will quickly fail and Biden could be formally declared president-elect in less than an hour.
If a senator did sign on to challenge the results, Republicans could force Congress into a final, messy debate over Trump’s refusal to concede defeat and his baseless claims of election fraud, which have been roundly rejected in court.
Given Democrats’ control of the House and Republicans’ narrow Senate majority, almost no one expects that they would have the votes to succeed in disqualifying a state — much less five. But the debate and vote alone would put Republicans in a difficult position, forcing them to choose between an uncompromising president and their belief in the electoral process.
Their choices could likely go a long way in setting the future course of the party, faith in American elections and the perceived legitimacy of a Biden presidency by the Republican base.
Pence may have the most uncomfortable task of all.
At the end of the process, it will be left to Pence to declare Biden the winner once and for all, albeit in tangled prose.
“This announcement of the state of the vote by the president of the Senate shall be deemed sufficient declaration of the persons elected president and vice president of the United States, each for a term beginning on the 20th day of January 2017,” Biden himself declared when he oversaw the tallying for Trump’s vote as vice president in 2017.
Pence is far from the first vice president to be put in the uncomfortable position of certifying his own ticket’s loss. Overseeing the session in 2001, Vice President Al Gore had to rule against objections that would have delivered the presidency to himself if they were sustained, eventually declaring George W. Bush the victor.
But Pence serves a uniquely mercurial president with a penchant for disregarding the democratic process. The joint session will be a final dilemma, forcing him to balance his loyalty to Trump and his own political interests against his constitutional and legal obligations.
Precedent and statute give the vice president little wiggle room.
“There’s not much he can do,” said Donald A. Ritchie, the Senate’s former in-house historian. “His job is really just to read them out aloud. It’s up to the members if they are going to do anything.”
His only other option may simply be not to show up, leaving the task of overseeing the session to Sen. Chuck Grassley, R-Iowa, who is the Senate president pro tempore, a distinction reserved for the longest-serving member of the chamber’s majority party.