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No, Biden hasn't won yet — one more nightmare scenario

With the Supreme Court’s rejection of the Texas lawsuit, it’s over, right? 

Not so fast. Trump has one more card to play, depending on whether Republicans in Congress are more loyal to Trump than they are to the country.

After the electoral votes are cast, they have to be accepted by Congress.

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By law, the House and Senate meet together on Jan. 6, and if any state’s ballots are challenged by one member of the House and Senate, the chambers must meet separately and vote on the challenge. Given that 126 members of Congress signed on to the Texas lawsuit to overturn Joe BidenJoe BidenTrump grants clemency to more than 100 people, including Bannon Scalise bringing Donna Brazile as guest to Biden inauguration Sidney Powell withdraws 'kraken' lawsuit in Georgia MORE’s victory, and that many GOP senators have not accepted Biden as the president-elect, some states are going to be challenged.

Here’s where things get interesting. The controlling federal law, the Electoral Count Act (ECA), is more than 100 years old, opaque and has never been fully used. It may not even be constitutional.

The Congress over which the old vice president will be presiding will be the new one, sworn in Jan. 3. The new House, narrowly Democratic, will vote down any challenge. But the Senate? Something very different could occur.

Let’s suppose that the balance is 52-48 Republican. But Sens. Mitt RomneyWillard (Mitt) Mitt RomneyMcConnell keeps GOP guessing on Trump impeachment Senators vet Mayorkas to take lead at DHS Romney calls for Senate to pass sanctions on Putin over Navalny poisoning MORE (R-Utah), Ben SasseBen SassePompeo labels China's treatment of Uighurs 'genocide' GOP senators wrestle with purging Trump from party Sasse, in fiery op-ed, says QAnon is destroying GOP MORE (R-Neb.), Susan CollinsSusan Margaret CollinsThe Memo: Biden prepares for sea of challenges Biden's minimum wage push faces uphill battle with GOP GOP senators wrestle with purging Trump from party MORE (R-Maine) and Lisa MurkowskiLisa Ann MurkowskiMcConnell keeps GOP guessing on Trump impeachment FDA chief says he was 'disgusted' by Capitol riots, considered resigning The Memo: Biden prepares for sea of challenges MORE (R-Alaska) have said that Biden won, so Biden wins in a close vote, right? And even if the Senate votes to uphold the challenges, the ECA has a tiebreaking provision — any slate of electors that is certified by their state’s governor will be accepted if the House and Senate disagree. Biden, again, would win. Thus, The New York Times assumes that Republican challenges to the electoral votes would be futile.

But what if the Senate never finishes voting? The ECA limits each challenge to no more than two hours of debate. Four states were questioned in the lawsuit (Georgia, Wisconsin, Michigan and Pennsylvania), making four challenges and eight hours of delay. Even in the Senate, eight hours of debate can’t last more than a couple days, can it? 

The law envisions the ability to challenge electoral votes collectively or individually. Surely a crafty legal mind like Sen. Ted CruzRafael (Ted) Edward CruzBlinken affirms plan to keep US embassy in Jerusalem The Intercept bureau chief: Biden's top candidate for DOJ antitrust division previously represented Google Attorneys urge Missouri Supreme Court to probe Hawley's actions before Capitol riot MORE (R-Texas) would challenge, not each state, but each electoral vote separately. And as a delaying tactic, why wouldn’t the Trumpers challenge every Biden state, even Delaware?  

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The goal is not to win, the goal is to delay, to prevent the “tiebreaking” provision of the ECA from happening. 

Remember, the presiding officer under the ECA is Mike PenceMichael (Mike) Richard PenceHere's how presidents move into the White House in just hours on Inauguration Day New York court worker arrested, accused of threats related to inauguration Meghan McCain: Trump's legacy is DC looking like a 'war zone' MORE. He can be expected to interpret the rules in a way highly favorable to the Republicans. He can help the GOP delay any resolution until about Jan. 18.

Now comes the endgame maneuver. The Constitution specifies that if there is no Electoral College winner, the Senate chooses the vice president and the House picks the president. The Senate, claiming that there is no Electoral College result, picks Pence.

Overturning an election? Why not? The raw hatred and polarization in American politics have shown that no precedent or law is safe. Ask Merrick Garland.

And it won’t be a Biden-Pence administration. The Democratic majority in the House can’t pick Biden because when picking a president, the House votes by state delegation, and the Republicans control more House delegations.

The House Democrats will never let that vote happen. Which means we won’t have a president. If we don’t have a president by noon on Jan. 20, the law of presidential succession comes into play.

But who is next in line of succession? Republicans will claim that the presidency is empty, but the Senate did its job and picked Pence as vice president. The Democrats will say the whole process was illegal and unconstitutional, and that the next in line is therefore the House Speaker, presumably Nancy PelosiNancy PelosiThe Memo: Trump leaves changed nation in his wake New York court worker arrested, accused of threats related to inauguration GOP Rep Marjorie Taylor Greene referred to Parkland school shooting as 'false flag' event on Facebook MORE

Stalemate. An empty presidency at noon on Jan. 20, with Trump tweeting that it should remain his, Democrats saying Pelosi or Biden and some Republicans secretly hoping it’s Pence.

And if you’re thinking that the Supreme Court would save Biden, think again. It would probably rule the question to be a political one, and therefore nonjusticiable. There isn’t a clear constitutional principle or law that the court could apply.

Can anything be done to prevent this? Nothing can stop the delay. But the final maneuver of picking Pence by the Senate can be stopped in two ways. First, a few honest Republican senators could vote for Vice President-elect Kamala HarrisKamala HarrisScalise bringing Donna Brazile as guest to Biden inauguration McConnell, Schumer fail to cut power-sharing deal amid filibuster snag Howard University's marching band to escort Harris at inauguration MORE, since her ticket actually won. 

That would almost surely mean the end of their political career.

Failing that, Democratic senators would have to deny the Senate a quorum, which would mean neither chamber would have picked a winner. Under the 12th Amendment, two-thirds of all senators must be present. If 34 Democrats leave the chamber, they can stop Pence’s selection. If they do, then all the GOP delay would have led to replacing Biden with ... President Nancy Pelosi.

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Of course, if the GOP really wanted to move America toward banana republic territory, the rules allow the sergeant-at-arms to arrest and drag senators back to the chamber to make a quorum. It’s impossible to say if they’d go that far, or if it would succeed.

But what we can say is that this isn’t over yet. Most likely, Biden is our next president, but we could be in for a very rough ride between now and Jan. 20.

Jeremy D. Mayer is an associate professor at the Schar School of Policy and Government at George Mason University and the coauthor most recently of "The South and the Transformation of U.S. Politics" (Oxford 2019).