The final stage in the selection of an American president comes at 1 p.m. on Wednesday, Jan. 6
Under the conditions of the 12th Amendment to the Constitution, both the House and Senate meet at 1 p.m. in a joint session of Congress in the House chamber. Vice President Mike Pence, in his capacity as President of the Senate, presides. But, there have been several instances where the President Pro Tempore of the Senate (the most senior member of the majority party) presides in place of the vice president. This would be Sen. Chuck Grassley, R-Iowa.
For instance, President Richard Nixon defeated the Democratic nominee, Vice President Hubert Humphrey in 1968. Humphrey was still vice president. But he was overseas for the funeral of the first United Nations Secretary General Tryvgie Lie. So, the duties fell to Sen. Richard Russell, D-Ga., the president pro tempore to preside over the session in Humphrey’s absence.
The 12th Amendment says that the vice president shall “open the certificates and the votes shall then be counted;- The person having the greatest number of votes shall be President.”
There is some debate as to the role of the vice president at this stage. Some believe it is ceremonial. The lawsuit filed by Rep. Louie Gohmert, R-Texas — tossed out of court by a federal judge appointed by President Trump — pushed for the vice president to have more power over the session and the adjudication of electoral votes sent in from the states.
All 50 states certified their election returns last month. The Electoral College convened. Each state sent an electoral slate to Washington.
Fox is told it’s not unheard of for a “rogue” slate of electors to be sent to the vice president’s office or the Archivist of the United States as a practical joke, or, perhaps someone attempting to cause mischief. Fox has learned that when a surrogate slate of electors was sent in, the powers that be would simply ignore it. Don’t forget that White House adviser Stephen Miller suggested sending in alternative slates of electors from competitive states.
This is in fact where Pence could flex some muscle. It depends on which electoral certificates the vice president elects to “open” under the 12th Amendment.
This brings us to the Electoral Count Act of 1887. Congress approved the Electoral Count Act after an epic battle from the disputed election of 1876 between President Rutherford B. Hayes (the ultimate winner) and his vanquished opponent Samuel Tilden. More on that later. But the Electoral Count Act — alongside the 12th Amendment — sets the ground rules for how Congress operates during the Joint Session of Congress to certify the winner of the Electoral College.
One footnote before we begin:
It’s common for the House and Senate to prepare what’s called a “concurrent” resolution which could establish certain parameters for handling Electoral College disputes this time around. Such a resolution is often non-controversial. But, that resolution could carry extra weight or have the potential to upend or truncate this year’s Electoral College certification. But both the House and Senate must first agree to that resolution.
Under the Electoral Count Act, the vice president and Congress are supposed to only pay attention to the certificate which is signed by the governor of a state. But there is the potential for deference by the vice president as to which slate of electors he should recognize if there are multiple certificates from an individual state.
Hawaii wasn’t a determinative state in the 1960 presidential election between President John F. Kennedy and future President Richard Nixon. Kennedy was going to win the White House, regardless of Hawaii. There were allegations of vote fraud elsewhere, notably Illinois and Texas. Initial results from Hawaii showed that Nixon captured the Aloha State. But a recount shifted the win to Kennedy. Hawaii sent two slates of electoral votes to Washington: one for Nixon and one for Kennedy, both signed by the governor. By the book, Hawaii’s electoral votes should have gone to Nixon. But when the Joint Session of Congress convened in January, 1961 Congress handed Hawaii’s then three electoral votes to Kennedy. Nixon, then Vice President, presided. Nixon could have recognized the other slate of votes from Hawaii – for himself.
The electoral votes are brought into the House chamber in mahogany boxes. The vice president reads aloud the votes from each state, in alphabetical order. We don’t anticipate any issues with Alabama and Alaska. But hold on when we get to Arizona, third in line. The same is likely true for Georgia, Michigan, Nevada, Pennsylvania and Wisconsin.
Under the Electoral Count Act, a petitioner from both the House and Senate are required to challenge a state’s slate of electoral votes and the provocation must be in writing.
House members contested Electoral College results in 2001 and 2017 without a Senate sponsor. In 1969, Rep. James O’Hara, D-Mich., and Sen. Edmund Muskie, D-Maine, challenged North Carolina’s slate over a “faithless elector.” This is an elector who cast his ballot for George Wallace when he was pledged to Nixon. The 1969 incident marked the first time a state’s electoral slate was challenged under the Electoral Count Act of 1887.
In 2005, Rep. Stephanie Tubbs Jones, D-Ohio, joined forces with Sen. Barbara Boxer, D-Calif., to challenge Ohio’s electoral slate.
What happens if at least one House member and one senator get together to oppose a state’s electoral votes?
Let’s start with Arizona.
Rep. Mo Brooks, R-Ala., and dozens of House members are expected to raise issues with Arizona’s slate of electors. Sen. Josh Hawley, R-Mo., has already said he would join various House challenges. A coalition of other GOP senators, led by Sen. Ted Cruz, R-Texas, did not say they would object to a state’s electors on the floor as Hawley did. But instead, these Republicans declared they “intend to vote on January 6 to reject electors from disputed states.”
These senators argue that in 1877, there were disputed electors from Florida, Louisiana, South Carolina and Oregon. Congress then created an “Electoral Commission” to determine how to parse out the electoral votes from these states. Congress would ultimately vote on those results. In those days, the Electoral College was smaller. The Electoral Commission awarded all contested electoral votes to Hayes, making him president, 185 electoral votes to 184 electoral votes for Tilden.
The coalition of GOP senators is calling for the creation of a similar committee today.
Such a prospect remains doubtful. But here’s what happens when House and Senate members join together to challenge a state’s electoral slate:
The joint session is suspended. The House then meets – just as the House. Senators then head back across the Capitol Rotunda to the Senate chamber. And, for up to two hours, the House and Senate separately consider and debate whatever grievances lawmakers have with Arizona’s electoral slate. Members may speak for up to five minutes during the two-hour window. The House and Senate then both take separate votes. It takes both the House and Senate to reject a state’s electoral votes. If that happens, the electoral slate just disappears. It’s as though Arizona never happened. The House and Senate then reconvene in the joint session and continue with Arkansas, California and Colorado. There probably isn’t another issue until they get to Georgia.
But, as we always say, it’s about the math, it’s about the math, it’s about the math.
The House begins with 432 members. 222 Democrats, 210 Republicans and three vacancies. The Senate starts with 51 Republicans and 48 senators who caucus with the Democrats and one vacancy. Sen. Kelly Loeffler, R-Ga., continues as a senator because she is fulfilling an unexpired term. Former Sen. David Perdue, R-Ga., does not. His term ceased. Remember, the Senate calculus could change midstream – in the middle of all of this – if we get election results in the two Georgia Senate runoffs.
It is believed that Democrats would certainly vote to reject any electoral challenges from Republicans. And, there are certainly enough Republicans to join Democrats to do the same in the Senate.
But remember, we are doing this in the age of COVID-19. The House and Senate are both at the margins for both parties right now. Absences imposed due to positive tests or quarantine matter. A lot. You never know exactly who is going to be there. Moreover, the House of Representatives will reinstitute its “remote voting” regime for the 117th Congress. The Senate has never had a remote voting option. But the House is barred from using remote voting during the certification of the Electoral College.
So, contesting each state probably takes a few hours. This is why the final certification of the electoral vote probably bleeds well into the wee hours of Jan. 7 if not deep in the day on Jan. 7 – or beyond.
Consider that there is a two-hour debate for each state. That is to say nothing of how long it takes to conduct the roll call votes in a pandemic (the House averages about an hour per roll call vote these days). That also doesn’t address all of the ceremonial time, speeches and minutes devoted to roll through states with uncontested electoral slates.
You see easily how this process could chew up a couple of days.
The Electoral Count Act does permit recesses. But the House and Senate aren’t allowed to dissolve the joint session of Congress until the Electoral College is finalized. And, Congress must wrap this up within a five-day window.
We are into some new turf here as to what happens when multiple states electoral slates are in play. In 2005, the Senate rejected the objection to Ohio’s slate 74-1. The House turned down the appeal 267-31.
This entire exercise is set against the backdrop of loyalists to President Trump claiming election fraud and Trump summoning protesters to demonstrate in Washington. This process also has the potential to splinter the Republican party and set a rocky precedent for years to come. Senate Majority Leader Mitch McConnell, R-Ky., counseled Republicans against challenging electoral votes. But those calls fell on deaf ears. Sens. Mitt Romney, R-Utah, Ben Sasse, R-Neb., Susan Collins, R-Maine, Pat Toomey, R-Pa., Roger Wicker, R-Miss., and Lisa Murkowski, R-Ark., have all spoken out against the maneuver to challenge the electoral votes.
Moreover, each state of contested votes triggers a roll call vote documenting how lawmakers in both the House and Senate stand on say Pennsylvania’s electors or Michigan’s electors. This is undoubtedly a helpful vote for some right-wing Republicans or those close to President Trump. It may help them avoid a primary challenge or ingratiates them with the GOP base. But these votes could come back to haunt others. And, there will certainly be some Republicans who represent states or districts where their vote – one way or the other on each electoral slate – could help or hurt them. Choose the wrong direction and it could be dangerous politically
This is precisely why McConnell and other GOPers hoped to avoid such an electoral imbroglio. It’s divisive for Republicans and will echo throughout American politics for decades to come.
But by the end of the day on Jan. 6, 7 or 8, there is going to be a decision. And everyone in Congress is going to be on the record as either upholding the Electoral College Results – or rejecting them.