Trump’s team has styled this as a major showdown. But the outcome is already clear.
The final step in making the results of the 2020 presidential election official — before Inauguration Day itself — takes place Wednesday, January 6, when Congress counts the Electoral College votes and formally confirms Joe Biden’s win.
This usually isn’t a particularly dramatic occasion, since the Electoral College vote count — 306 votes for Biden, 232 for Donald Trump — was finalized when the electors cast their votes in December. But Trump and his allies have hyped up Wednesday’s count as the final showdown in the president’s efforts to overturn Biden’s victory. And there will indeed be some fireworks.
You can watch the joint session of Congress, which begins at a legally mandated time of 1 pm Eastern, on C-SPAN, and we’ll embed a livestream in this post once one is available. The whole affair could drag on for hours, or even into later this week.
That’s because some congressional Republicans have decided to formally object to the results in key swing states Biden won, claiming they can’t be trusted due to allegations of fraud. When at least one House member and one senator object to any state’s results, it triggers the chambers to separate for two hours of debate and a vote over whether the objection should stand.
This means members of Congress will have to decide whether to reject the results in states Biden won, which would disregard the will of those states’ voters. And a significant number of Republicans have already made clear they will try to do just that, hence the potentially hours- or even days-long count.
But all of the results will stand. Actually throwing out the electoral votes from any state would require approval from both houses of Congress. The Democratic-controlled House obviously won’t do this, and in the Senate, many Republicans have said they won’t go down this road.
There’s also been some intrigue over the role of Vice President Mike Pence. The US Constitution requires him, as president of the Senate, to preside over the count. Trump and some of his supporters have embraced the fanciful theory that Pence can unilaterally reject the electoral votes of disputed states. While Pence’s team has signaled he does not agree, we won’t know for sure until we see what he does on Wednesday.
There’s also the question of what will happen outside the walls of Congress. Trump has encouraged supporters to go to Washington, DC, and protest as the count is occurring. “Be there, will be wild!” he tweeted in December. Indeed, there have already been several instances of violence and clashes among pro-Trump protesters and counterprotesters during the post-election period.
In one sense, whatever unfolds in Congress will be a lot of sound and fury that changes nothing: Biden will be sworn in as the next president in two weeks. Yet the spectacle of dozens of elected Republicans coming out in support of disregarding the will of voters has been an unsettling one that points to further difficulties ahead for the country’s politics.
What does it mean for Congress to count the electoral votes?
Since the American people voted in the presidential election on November 3, we’ve been gradually progressing through the procedural steps that make the next president official. First, the states certified their results and appointed electors accordingly (Biden-supporting electors in states Biden won, and Trump-supporting electors in states Trump won). Second, on December 14, those electors — the Electoral College — met in each state and cast their votes (306 for Biden, 232 for Trump).
Per the Constitution, those electoral votes are then sent to Congress, which will count them during a joint session.
“The President of the Senate” — that’s Pence — “shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted,” the 12th Amendment reads. “The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed.”
That’s the final milestone before the new president is inaugurated on January 20, and in a typical year, it’s pro forma — in other words, a routine matter. We know what the electoral votes are; Congress’s only job is to count them.
But there’s a catch.
Members of Congress can object to states’ Electoral College results
After the extremely messy disputed election of 1876 (which was eventually resolved by a 15-person ad hoc commission and probably a backroom deal), Congress decided to get its act together and make clear, by law, how the counting of the electoral votes should work in case of future disputes.
The result was the Electoral Count Act of 1887, later amended in 1948. (You can read the currently operative section of US Code it created here.) It establishes:
- A date and time for Congress to count the electoral votes (January 6 at 1 pm Eastern)
- That the count will occur in alphabetical order by state name (from Alabama to Wyoming)
- That the vice president will “open” the electoral vote certificates and then hand them to four “tellers” appointed by the House and Senate — this year, those tellers are Sens. Amy Klobuchar (D-MN) and Roy Blunt (R-MO), and Reps. Rodney Davis (R-IL) and Zoe Lofgren (D-CA)
- That the tellers will read the electoral votes for each state, count them, and give them back to the vice president
- And — here’s the important part this year — that the vice president will then “call for objections”
To be deemed in order, any objection must be in writing and must be signed by at least one senator and one member of the House.
If such an objection is submitted for any state’s results, what happens next is that the House and Senate go their separate ways. There will be two hours of debate, and then each chamber will vote. But, again, it would take a majority vote in both the House and the Senate to reject the results in any state.
Trump’s congressional allies plan to object to the results of some states Biden won
Over the past two months, Trump’s effort to overturn the election results has involved trying — and failing — to interfere with several usually routine aspects of the electoral process. He tried to get Republican state officials to refuse to certify Biden’s victories, he tried to get state legislatures to replace Biden electors with Trump electors, and he filed dozens of lawsuits trying to get judges to step in.
So contesting the results in Congress is the natural next step. It’s been clear since early December that some pro-Trump House Republicans would try to object to the results in certain states — and in recent days, several senators have made clear that they’ll join them.
Sen. Josh Hawley (R-MO) was the first to make his intention to object clear, and shortly afterward, Sen. Ted Cruz (R-TX) organized his own effort with 10 other senators (they are demanding Congress form a commission to review the results over the next 10 days).
Most of the objecting senators haven’t fully embraced Trump’s claims that the election was stolen. But they’re pandering to Trump’s supporters, arguing that because so many Americans lack confidence in the results, they simply can’t in good conscience count these electoral votes. They tend not to acknowledge that a main reason many Americans lack confidence in the results is because Trump himself keeps promoting a blizzard of lies and conspiracy theories.
In any case, there is some limited precedent to objections like this. In January 2005, Sen. Barbara Boxer (D-CA) and Rep. Stephanie Tubbs Jones (D-OH) objected to George W. Bush’s win in Ohio, forcing a vote on the matter (both chambers overwhelmingly upheld Bush’s win). But the context there was different — Kerry had conceded long before. And the only other objection taken up by Congress since the Electoral Count Act passed was in 1969, about a faithless elector who had voted for George Wallace rather than Richard Nixon (Congress upheld the Wallace vote).
However, there have also been times when House members have tried to object to results but senators refused to join them, meaning the objections wouldn’t be taken up. For instance, in January 2017, several House Democrats tried to object to Trump’s win, but they couldn’t find a single senator to join them, so it went nowhere. A similar spectacle unfolded in January 2001, after the infamously close Bush versus Gore election.
These challenges will not succeed — but they could drag out the process
The way these challenges work, you have to object to results in a specific state (as the count proceeds in alphabetical order by state). And it’s not clear at this point how many states will face objections. According to Politico’s Olivia Beavers, objections to Arizona, Georgia, and Pennsylvania are likely. Trump has disputed the results in Michigan, Nevada, and Wisconsin as well, but no senator has yet committed to objecting to them. (If only House members object, the objection will be ignored.)
It’s also unclear how long this will end up taking. In January 2017, the full count of the Electoral College results took less than an hour. But each time there’s an objection (that a House member and senator back) for a state, it could delay the process for two hours plus the time it takes to hold votes in each chamber. (It would also be possible, if Congress reaches agreement, to dispense with the objections more quickly.) So the count could stretch well into the evening or even later in the week, depending on how many objections are heard.
But the outcome is certain. Current estimates are that well over half of House Republicans will end up objecting, but some others, like Reps. Liz Cheney (R-WY), and Thomas Massie (R-KY), have announced they oppose this effort. And in any case, Democrats control the House, and of course none of them will sign on. In the Senate, meanwhile, enthusiasm among Republicans for challenging the results has been relatively sparse, and all Democrats will oppose it.
So on one hand, this effort is a political stunt that will do nothing to change the outcome, since it was always certain that Speaker Nancy Pelosi’s House would prevent any challenge from succeeding. That may be how some Republicans are justifying signing on — but some of their colleagues sound appalled at this behavior. Sen. Ben Sasse of Nebraska, for instance, has said: “Adults don’t point a loaded gun at the heart of legitimate self-government.” Other Republicans have expressed concern for states’ rights if a precedent is established that Congress can overturn the outcome.
What can Mike Pence do?
One other notable feature of the proceedings is that Vice President Mike Pence will preside over the count — a fact that has spurred some Trump allies and now the president himself to hope or pretend that Pence can somehow change the results.
The Vice President has the power to reject fraudulently chosen electors.
— Donald J. Trump (@realDonaldTrump) January 5, 2021
This assertion that the vice president can throw out electoral votes he doesn’t like would certainly be news to every previous vice president who has been in this position. And it certainly doesn’t seem to have any basis in the law or the Constitution.
The 12th Amendment says Pence’s job is to “open all the certificates,” and adds that “the votes shall then be counted.” So technically, he’s not even in charge of counting, just of “opening.”
We should note here that Trump’s campaign tried to name slates of “alternate electors” in states they want to dispute. According to Frank Thorp of NBC News, though, the National Archives said that because none of these elector slates were certified by any state, they would not be sent along to Congress to be counted (apparently dashing Trump fans’ hopes that Pence could pull them out of the envelopes and try to count them Wednesday).
Some Trump supporters have pointed to an instance related to the 1960 election, in which John F. Kennedy defeated Richard Nixon, as possible precedent for Pence to take action. That year, the new state of Hawaii had submitted its electoral votes (for Nixon) while a recount was still in progress — but the recount made Kennedy the winner, so the state then submitted a second set of electoral votes for Kennedy.
With then-Vice President Nixon presiding, Congress then had to determine how to deal with these dueling Hawaiian electoral vote slates (though they wouldn’t affect the overall outcome). Nixon proposed that Congress count the second set, the votes for JFK, to avoid delaying the process. But he didn’t make this decision unilaterally — he offered it as a suggestion to Congress, which approved it by unanimous consent.
So what this example really shows is that past vice presidents have interpreted their role here humbly, deferring to Congress and essentially reading what they’re supposed to say and do off a script prepared by congressional parliamentarians.
Indeed, just four years ago, it was then-Vice President Joe Biden who presided over the count for the 2016 election results. Some House Democrats tried to officially object then, but they couldn’t get any senator to join them — so Biden gaveled down their objections, declaring at one point, “It is over.”
— CSPAN (@cspan) January 6, 2017
This time around, Pence is facing pressure from Trump to do something bizarre and unprecedented during the count to try to keep Trump in office. On Monday night, Trump said at a rally in Georgia, “I hope that our great vice president comes through for us. He’s a great guy. Of course, if he doesn’t come through, I won’t like him quite as much.” Trump and Pence reportedly met at the White House on both Monday and Tuesday.
Pence (like Hawley and Cruz) has ambitions to run for president himself in the future, and he doesn’t want Trump or Trump’s fans among the GOP base to view him as a traitor and sellout. So he’s trying to sound tough. “We’ll have our day in Congress. We’ll hear the objections. We’ll hear the evidence,” Pence said at a rally Monday. But that falls notably short of promising to use his authority in legally dubious ways, as Trump wants.
On Tuesday, incorrect reports briefly spread that Pence planned to skip the count entirely (based on a garbled statement by Sen. Chuck Grassley). Pence’s team quickly batted down those reports, and they’ve signaled to reporters that he plans to attend — and to use his power responsibly. “Members of the vice president’s circle expect that Mr. Pence will follow the rules while on the Senate floor and play his ceremonial role as scripted,” the New York Times’s Annie Karni and Maggie Haberman reported.
President Trump will likely not be so responsible. As thousands of his supporters pour into Washington to protest Wednesday, he plans to speak at a rally on the Ellipse. He shows no signs of conceding just yet.
Author: Andrew Prokop