Can the results of the US election change on January 6th?
Congress is set to count electoral college votes this Wednesday, but is there any chance that the results could surprise us? Our co-editor, Luis Gonzalez, takes a look.
This has to feel like the longest US Presidential election in history, and two months after the polls closed we still haven’t reached a satisfactory conclusion. There are two really important dates left, both in January, both Wednesdays, the 6th and the 20th. The 20th will be the day of the Presidential Inauguration in Washington, D.C., but the 6th is the day that the result should be firmly cemented, the day that Congress counts the votes cast by the Electoral College back in December.
So, what exactly happens on January 6th, and is there any chance of a surprise in the results?
The counting
On Wednesday, January 6th, Congress will convene in a joint session at 1:00pm in order to tally the votes cast by the Electoral College and announce the results, as per US Code 3 § 15. The procedure itself is presided by the President of the Senate (i.e. the Vice President of the US), Mike Pence, who is tasked with opening the certifications of each state in alphabetical order, handing the certificates to tellers appointed from members of the House and Senate who will read them out loud and record the results. After the results are tallied, Pence will announce the candidate with more than 270 electoral votes to their name and thus pronounce that person President of the United States. If electors vote according to the popular vote announced by the media in each state, then Joe Biden should walk away the President with a tally of 306-232. More information on the procedure can be found in a document prepared by the Congressional Research Service which you can find here.
Should we expect any surprises?
The process itself is usually a formality, but last year proved that nothing should be taken as a mere formality. There have been talks of the day being interesting, increasingly, we’ve been given a number of reasons to suspect that some Republicans may try to “save the Republic”, as they might say, or “destroy democracy”, as their rivals might put it.
On December 27th, 2020, the political polling firm Rasmussen Reports tweeted out a bizarre thread (quoting Stalin of all people) and clearly stating that Vice President Pence could, if he so wished to, overturn the election by simply ignoring the certificates sent from battleground states.
This vision of the Vice President’s power in determining the results of the election goes along with Representative Louie Gohmert’s (a Republican from Texas) lawsuit positing that Mike Pence can choose to ignore certifications or even decide that a different slate of electors should be the ones whose votes should be counted.
Gohmert was effectively asking a Texas District Court to strike down the Electoral Count Act of 1887 passed by Congress in order to protect the Constitution, because, according to his lawyers, it goes against the Constitution’s 12th Amendment. There’s not much proof of this in the brief itself but the truly bizarre thing is that he’s also trying to expand Pence’s powers to allow him to choose which certificates to count and which to ignore, when the Constitution clearly says that the Vice President must open all of the envelopes. The lawsuit was dismissed by the court last Friday, stating that Gohmert lacked standing to sue Pence in this matter.
In any case, the suit was pretty wild, as the consequence of granting the plaintiff’s requested remedy would set a dangerous precedent. Imagine that, the Vice President of the United States, a candidate in the 2020 election, getting to decide who wins the election…
Can the electoral votes be challenged?
The short answer is yes, they can be. When the electoral votes from each state are announced, the members of the House and Senate may come forward with objections to the validity of the electors to cast a vote. The joint session is then suspended and the House and Senate will consider the objection made and vote separately, both the House and the Senate must agree to the objection (via a simple majority vote) for it to pass. There’s ample room for objections to be presented Wednesday, especially when considering the controversial battleground states, however, seeing as the Democrats control the House and many Republicans in the Senate have already recognized Biden as the winner of the election it is unlikely that these attempts will be successful.
But what would happen, in theory, if enough objections are passed?
Well, if enough objections pass so that neither candidate reaches the 270 electoral votes needed to become President, then the matter would fall into the hands of Congress. According to the US Constitution’s 12th Amendment, the House of Representatives would elect the President, while the Senate elects the Vice President. It’s worth pointing out that the votes in the House wouldn’t be cast by each Representative, the votes are cast by state, and the Republicans have that majority tied up.
While it’s an interesting scenario, in order for it to happen, Congress would have to successfully object to around 37 electoral votes, and given the power balance in the House, that’s very unlikely to happen.
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