Questions and answers about the Electoral College challenges

Greg Nash

Congress will convene for a joint session Wednesday to tally electoral votes from the 2020 presidential election in one of the last formalities before President-elect Joe Biden takes office on Jan. 20.

But the normally routine proceedings promise to be a tense affair this time around as dozens of GOP lawmakers have vowed to challenge the election results.

The Electoral College voted last month 306 to 232 to elect Biden as the 46th president of the United States, but Congress needs to record those votes before he can be sworn in on Inauguration Day.

The procedures for the final electoral vote tally are laid out by the 12th Amendment of the Constitution, the Electoral Count Act of 1887 and a concurrent resolution adopted by the Senate and House on Sunday.

Never in the nation’s history have both chambers of Congress voted to invalidate an election, or even an individual state’s electoral votes.

Lawmakers in both parties, even those who plan to object to some states’ votes for Biden, say they do not expect Congress to invalidate any Electoral College votes on Wednesday.

Nevertheless, it’s expected to be a dramatic day since it’s President Trump’s last chance to attempt to overturn the results of the 2020 election.

A senior House Democratic aide involved in the planning efforts for the joint session said: “We are prepared for everything.”

Here are answers to the biggest questions surrounding the proceedings.

How is a challenge made?

Under a concurrent resolution approved this week by the House and Senate, two tellers from the Senate and two tellers from the House will take turns announcing the certificates of electoral votes for each state in alphabetical order. 

After a certificate of electoral votes for Biden or Trump is announced, any lawmaker may stand up to voice their objection.

The objection must be presented in writing and must have the signature of at least one member of the House and one member of the Senate. It must state “clearly and concisely” the grounds for objection.

At that point, Vice President Pence, sitting in the chair as the president of the Senate, will recognize the objection as complying with the Electoral Count Act, Title 3, Section 15 of the U.S. Code, and order the House clerk to read the objection.

Pence will then instruct the Senate and House to withdraw from the joint session to deliberate and vote separately on the pending objection and report their respective decisions back to the joint session at a later time. 

The vice president is required by law to consider the presentation of election certificates of all 50 states and the District of Columbia in alphabetical order. Objections to each state’s electoral votes must be debated and voted on one at a time.

Have there been objections before?

Yes. The last time a House member and a senator signed on to an objection to a state’s electoral slate was in 2005, when then-Rep. Stephanie Tubbs Jones (D-Ohio) and now-former Sen. Barbara Boxer (D-Calif.) lodged an objection to Ohio’s votes, which were decisive in former President George W. Bush’s defeat of Democratic nominee John Kerry. 

The objection was recognized by Vice President Dick Cheney, who suspended the joint session so that each chamber could debate and vote on the matter. 

A key difference between now and then was that Kerry, who had already conceded the race to Bush, announced beforehand that he would not participate in the electoral protest. He was traveling in the Middle East when the chambers convened to tally the results of the 2004 presidential election.

The challenge was resoundingly defeated by a 267-31 vote in the House and 74-1 in the Senate, where Boxer was the only person to vote for it.

The joint session for tallying electoral votes was also suspended in 1969 when then-Rep. James O’Hara (D-Mich.) and former Sen. Edmund Muskie (D-Maine) objected to the vote of an elector from North Carolina who had been pledged to President Nixon and instead voted for George Wallace, a candidate for the American Independent Party.

The objection was subsequently rejected by both chambers and the vote for Wallace counted.

In 2001, Rep. Alcee Hastings (D-Fla.) led a group of Democrats in objecting to the certification of Florida’s electoral votes, citing “overwhelming evidence of official misconduct, deliberate fraud, and an attempt to suppress voter turnout.” The group was unsuccessful in finding a Senate counterpart.

Rep. Maxine Waters (D-Calif.) in 2017 led a group of House Democrats in objecting to the results in Alabama, Florida, Georgia, Mississippi, Texas, North Carolina, South Carolina, West Virginia, Wisconsin and Wyoming. No senators agreed to partake in challenging the results.

When will Wednesday’s joint session start?

The joint session is scheduled to start in the House at 1 p.m.

About 10 minutes later, Pence is expected to recognize a Republican lawmaker offering an objection to Arizona’s election results.

The vice president will then ask if a senator agrees with the objection before affirming it complies with the law. After the clerk reads the objection, Pence is then expected to ask if there are any additional objections to Arizona’s electoral votes before the chambers separate for their respective debates. 

Sources noted the timing could be subject to change.

How long will the proceedings take?

The proceedings will take hours, and possibly extend into the night.

If an objection gains the support of at least one member of both the House and the Senate, it will force a suspension of the joint session to allow each chamber to debate the issue for up to two hours.

Each senator and House member may speak up to five minutes and not more than once during those two hours.

Thirteen Republican senators have signaled they intend to support objections, which means they could fill more than an hour of debate time. After two hours it will be the duty of the presiding chair in each chamber to hold a vote without further debate.

The law states that “no votes or papers from any other State shall be acted upon until the objections previously made to the votes or papers from any State shall have been finally disposed of.”

That means Trump’s allies can delay the tally of electoral votes for up to two hours per state.

The entire process could last until around midnight if there are enough members from both chambers committed to prolonging the debate.

The Trump campaign is contesting the electoral votes of five states: Arizona, Georgia, Michigan, Pennsylvania and Wisconsin.

Will the electoral challenges be successful?

No. Both chambers must vote by simple majority to throw out a state’s electoral slate.

Given that Democrats control the House, and with a substantial number of Senate Republicans saying they will oppose objections which they see as an unconstitutional infringement on states’ rights, the effort is doomed to fail.

Even Republicans sympathetic to Trump’s unsubstantiated claims of widespread voter fraud acknowledge the effort is highly unlikely to overturn the election results.

Rep. Thomas Massie (R-Ky.) noted in a tweet that “If every Republican votes to disallow every Biden elector on January 6th, Biden will still be declared the winner by Congress. This is simple math, Democrats are in the majority and will vote to keep the Biden electors.”

Will the debate be public?

Yes. The debate in both chambers will be televised. The presiding chair of each chamber will put to members the question of whether the objection should be sustained and have the clerk read the objection.

According to House Democrats, Speaker Nancy Pelosi (D-Calif.) plans “to preside over any and all House debate considering objections.”

What is Pence’s role?

Pence’s actions on Wednesday are strictly bound by the Constitution and the 1887 law.

The law stipulates that the vice president shall only have the power to preserve order. It further states that no debate shall be allowed, nor any question considered, except a motion for each chamber to withdraw to consider an objection. 

The 12th Amendment states that Pence, as president of the Senate, shall open all the certificates of election and “the votes shall then be counted.”

“The person having the greatest number of votes for President shall be the President, if such a number be a majority of the whole number of Electors appointed,” the amendment states. 

The 5th Circuit Court of Appeals on Saturday affirmed a lower court’s decision dismissing a lawsuit filed by Rep. Louie Gohmert (R-Texas) that sought to expand Pence’s authority to overturn the election results of certain states.

Tags 2020 election Alcee Hastings Barbara Boxer Donald Trump Electoral College Electoral votes Joe Biden John Kerry Louie Gohmert Maxine Waters Nancy Pelosi Thomas Massie
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