On Jan. 3, 2021 the 117th Congress was sworn into office. On January 6, Congress will meet in a joint session to officially count the electoral votes cast in December. The congressional meeting on January 6 is the final step in the Electoral College process, confirming the electoral vote majority that Joe Biden won in December.
Congress’ only job is to receive and count the vote from the states. What makes this election different from others in the past is a last-ditch attempt by President Trump to try and abuse the Congressional ceremony to overturn the results, such as by asking the vice president to unilaterally throw out electoral votes that went for Biden.
At a rally in Georgia, Trump said, “I hope that Mike Pence 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.”
Additionally, Jenna Ellis, a lawyer for the Trump campaign, suggested that Pence should refuse to announce the results of the vote in each state – and that he should instead send a request to legislatures from six key battleground states where the Trump campaign have filed failed lawsuits.
However, there is nothing in the Constitution or the law that gives a vice president that power.
Will there be challenges to the election results on January 6?
A dozen senators and roughly one quarter of House members have announced their intention to object to certain states’ electoral votes on January 6.
Will there be a recalculation of the vote on January 6?
No.
The time for recounts and legal challenges has come and gone. While Trump has put pressure on the states – like Georgia – to recalculate their votes, this cannot legally happen.
Georgia, for example, has gone through two full recounts, including a hand recount verifying machine ballots, plus an in-depth review of signature matching demanded by Republican officials. After all of this, Biden’s victory in Georgia was certified by the Republican governor.
How do objections to election results work in Congress?
According to the Electoral Count Act (ECA), if at least one member from both the House and Senate sign on to an objection to a state’s electoral votes, the House and Senate then meet separately to debate and vote on the objection. The debate time is limited to a maximum of two hours. During that time, each member is permitted to speak only once and for no more than five minutes.
A state’s slate of electors cannot be rejected unless majorities of both chambers agree to do so for certain specific reasons. Most members of the House and Senate have already stated that they will not vote to reject any of the challenged slates, in which case all of the objections will fail.
Can Vice President Mike Pence weigh in on the results?
No. The vice president’s role is to be the master of ceremonies rather than arbiter of the outcome.
As the president of the Senate, Vice President Pence has a ceremonial role in the January 6 session. If the vice president refuses to participate, the pro tempore of the U.S. Senate will preside, which is Senator Chuck Grassley. The last time the vice president missed this event was in 1969.
Under the Electoral Count Act, the duties of the presiding officer include: preserving order and decorum; opening and handing electoral vote certificates to the tellers; calling for objections; and announcing the results of votes on objections.
During any separate meetings of the Senate to debate objections, the vice president calls a vote on objections after the two-hour period of debate, and may break a tie, but otherwise has no vote.
The ECA also provides that the vice president shall announce the result of the overall electoral vote count at the end of the vote-counting process — meaning the vice president announces the winning candidates for president and vice president.
None of these duties include the power to decide controversies that might arise over counting electoral votes or to otherwise decide the outcome of the election.
How seriously should we take challenges?
If you look simply through the lens of the outcome of the 2020 election, not at all. But what it says about the system more generally may prompt calls for reform of the process, including a review of the ECA, which was written in 1887 and needs to be updated and clarified.
In fact, the entire Electoral College is a fragile institution that can do tremendous damage to our country if norms are disregarded.
Our election system makes individual states responsible for conducting elections and certifying the results in accordance with their own state law. Once state officials have certified the results of the election in their state, it is not for Congress to second-guess or disagree with the results, but rather to recognize and count the votes of lawfully appointed electors.
All states have conducted and certified their elections in accordance with their own state laws, so there is nothing for Congress to do now except count the electoral votes. And all states except Wisconsin resolved their results before the “safe harbor” deadline on Dec. 8, 2020, which means Congress must accept those results as “conclusive.”
Simply put: Congress’s job on January 6 is to count electoral votes and announce the candidate who received the most votes as the winner. Congressional objections – amplifying misinformation from the White House – are irresponsible and will serve only to corrode confidence in a free and fair election.
What’s the deal with the challenge raised by the Texas attorney general?
In his lawsuit, the Texas attorney general alleged that actions by state officials in Pennsylvania, Georgia, Michigan, and Wisconsin violated the Constitution and diluted the impact of Texas votes.
Its major complaint was that state officials and courts in those states had changed election procedures to make it safer and more convenient to vote by mail or other methods during the COVID-19 pandemic. It said those changes violated the Constitution’s direction that “the legislature” of each state set voting procedures.
The Texas attorney general’s lawsuit had no merit. The argument that various state actors violated state law, and therefore violated the U.S. Constitution via the Electors Clause, has been made dozens of times to state and federal courts across the country, and not one – including the U.S. Supreme Court – has found a meaningful violation.
The body that decides whether the Wisconsin Elections Commission violated state law is the Wisconsin courts, which found no issues. The body which decides whether the Secretary of the Commonwealth of Pennsylvania violated the federal Constitution is the federal courts, which found no meaningful issues.