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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 Biden28 Senate Democrats sign statement urging Israel-Hamas ceasefire Franklin Graham says Trump comeback would 'be a very tough thing to do' Schools face new pressures to reopen for in-person learning 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 RomneyRomney: Capitol riot was 'an insurrection against the Constitution' Immigration experts say GOP senators questioned DHS secretary with misleading chart Top border officials defend Biden policies MORE (R-Utah), Ben SasseBen SasseRomney: Capitol riot was 'an insurrection against the Constitution' Overnight Energy: 5 takeaways from the Colonial Pipeline attack | Colonial aims to 'substantially' restore pipeline operations by end of week | Three questions about Biden's conservation goals Hillicon Valley: Colonial Pipeline attack underscores US energy's vulnerabilities | Biden leading 'whole-of-government' response to hack | Attorneys general urge Facebook to scrap Instagram for kids MORE (R-Neb.), Susan CollinsSusan Margaret CollinsCDC's about-face on masks appears politically motivated to help a struggling Biden Bipartisanship has become a partisan weapon Romney: Capitol riot was 'an insurrection against the Constitution' MORE (R-Maine) and Lisa MurkowskiLisa Ann MurkowskiRomney: Capitol riot was 'an insurrection against the Constitution' Senate panel deadlocks over Biden pick to lead DOJ civil rights division Senate GOP dismayed by vote to boot Cheney 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 CruzBipartisanship has become a partisan weapon Former OMB pick Neera Tanden to serve as senior adviser to Biden Seth Rogen says he's not in a feud with 'fascist' Ted Cruz, whose 'words caused people to die' 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 PenceSimon & Schuster CEO Jonathan Karp defends Pence book deal: report Gohmert says Jan. 6 mob attack on Capitol not an 'armed insurrection' House Democrats unveil .9 billion bill to boost security after insurrection 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 Pelosi28 Senate Democrats sign statement urging Israel-Hamas ceasefire Lawmakers bicker over how to go after tax cheats House Republican: 'Absolutely bogus' for GOP to downplay Jan. 6 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 HarrisHere's why Joe Biden polls well, but Kamala Harris does not Immigration experts say GOP senators questioned DHS secretary with misleading chart Carper urges Biden to nominate ambassadors amid influx at border 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).