The Election Process Continues

On January 6, the Congress will meet in joint session in the House chamber to officially count and validate the 538 Electoral College votes that have been certified by the 50 states and District of Columbia as the result of the 2020 presidential election. The electoral votes will be brought into the House chamber in mahogany boxes. Vice President Pence, in his constitutional role as president of the Senate, will open up each of the certificates reflecting the vote tallies sent by the states, in alphabetical order. He will hand them to “tellers,” who then read the states’ certificates, stating that the certificate from each state “seems to be regular in form and authentic.”

Mr. Pence has the power to recognize any lawmaker who in writing objects. When the Vice President gets to Arizona, third in line, things could get sticky.  The same is likely true for Georgia, Michigan, Nevada, Pennsylvania and Wisconsin. Some Republican lawmakers in the House and Senate are expected to object and allege election irregularities in those states and challenge the electoral results under the Electoral Count Act of 1887.  (Congress passed that law nine years after the 1876 presidential election between President Rutherford B. Hayes and Samuel Tilden, in which results from Louisiana, Florida, South Carolina and Oregon were in dispute.  Hayes won the electoral vote tally, 185-184.)

When objections to each state’s electoral votes on January 6 are raised, the Electoral Count Act will require lawmakers to withdraw to their respective chambers and enter into as much as 2 hours of debate and then vote on the merits of the objection(s).  The session could be lengthy, possibly stretching into January 7. Ultimately, majorities in both the House and Senate have to agree for the challenge to be successful, an unlikely prospect given that Democrats control the House. Many Republicans in the GOP-controlled Senate also have expressed skepticism of the challenges.

Historically, House members contested Electoral College results in 2001 and 2017 without a Senate sponsor. In 1969, Rep. James O’Hara (D-MI) and Sen. Edmund Muskie (D-ME) challenged North Carolina’s slate over a “faithless elector.” This was an elector who cast his ballot for George Wallace when he was pledged to Nixon. The 1969 incident marked the first time a state’s electoral slate was challenged under the Electoral Count Act of 1887.

About the Author

Bruce Moyer is government relations counsel for the FBA. 

About the FBA

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