Guided by a couple centuries of tradition, plus some phrases from the Constitution, an 1887 federal law, and congressional rules, but maybe delayed for hours by political mischief, America’s 46th President – Joe Biden — could finally be elected tomorrow. Or, perhaps, that might not happen until the wee hours of Thursday.
Both houses of Congress will meet jointly at 1 p.m. tomorrow in the House of Representatives chamber (the Senate chamber is too small even if the total numbers are lowered because of covid stay-at-homes). The sole purpose is to count the electoral votes for the presidential candidates.
Normally a decorous, perfunctory and largely foreordained process, it could be very different this time. At a minimum, it might be maddeningly slow. At a maximum, it could be chaotic. How much it is of either probably will depend primarily upon the actions – or inaction – of three people: Vice President Pence, Senate leader McConnell, and House Speaker Pelosi. (Pence, because he is the presiding officer of the joint session, McConnell and Pelosi because they are the leaders in their chambers with considerable discretion about managing floor proceedings.)
Whatever unfolds inside the Capitol building, a planned gathering Wednesday in the streets of Washington of as many as 30,000 supporters of President Trump has the serious potential to lead to violence, given the prominent role in organizing that event by the militaristic “Proud Boys.” Washington, D.C., officials have sternly told the organizers not to bring guns with them.
To be sure, the outcome of the November election has seemed clear over the nine weeks since voters went to the polls: Democrat Joe Biden appeared to have won 306 votes in the Electoral College and Republican Donald Trump, 232. A minimum of 270 is required to win.
All 50 states have now formally certified their electoral votes, and sent official notices of the results to Congress. A final act remains before a new President is sworn in on January 20: Congress must itself count the electoral votes. And that is what is to happen at the joint session set to begin at 1 p.m. tomorrow.
While the Constitution’s Twelfth Amendment has something to say on how the count is to be done, so does the 1887 Electoral Count Act, and so does a “concurrent resolution” that each of the two houses adopted when the new Congress assembled this past Sunday. But every one of those guiding sources has considerable looseness in its language, and 14 Republican Senators and more than 120 Republican Representatives have vowed to try to exploit that ambiguity in a last-ditch effort to prevent Biden from winning the count.
Here are the minimum steps that the guiding sources spell out, and here, also, are the options for mischief by the Republicans:
First: Vice President Pence will preside and will personally open the envelopes containing each state’s electoral votes. He will do so in alphabetical order, and hand each packet to a group of “tellers” As to six states whose votes may face the GOP challenge (Arizona, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin – each supposedly won by Biden), GOP lawmakers may announce objections to each.
Mischief potential: Pence, if he does what President Trump has asked and that the group of his congressional allies wants, could decide which packets to open. There are the certified Biden packets officially submitted, but there are also competing but unofficial Trump packets. Will Pence open both? If he does, his decision to do so perhaps could be challenged, and very likely would fail on a majority vote – if the rules allow such a challenge, which is unclear.
Second: If the planned objections are, in fact, made to any or all of the six states’ Biden votes, those are not immediately tallied by the “tellers.” Instead, each house reassembles separately in its own chamber, for up to two hours of debate, for and against each objection.
Mischief potential: What kinds of objections will the Vice President treat as sufficient? Is there any minimum amount of proof of an invalid elector vote or votes? Each objection to votes from a single state has to be referred separately, and in sequence, to the separate sessions, so challengers could add more states in order to prolong the process.
Third: In these separate sessions, there can be up to two hours of debate on each objection referred.
Mischief potential: How will the debate time be divided and who controls the debate? Must all of two hours be used for each state tally subject to an objection? Could the challengers try to slow it down further by formally protesting, from time to time, that there is no quorum present?
Fourth: Once the debate is over in each chamber, each chamber votes, with a simple majority necessary to uphold or reject an objection. This must be done, one state’s objection at a time, after debate.
Mischief potential: It is not clear, but each vote on each objection may have to be a formal roll call tally. In the House, it can take up to a half-hour for a formal roll-call, and roll calls are seldom completed in the official time allowed as members mill about or simply dally, adding more time to the proceedings.
Fifth: If both houses do not uphold the objection, it fails. Each house reports back to the reassembled joint session. If the objection has failed, that state’s electoral votes are counted, and the result announced. If the objection has succeeded in both houses, that is reported to the joint session, and those votes won’t be counted.
Mischief potential: The challengers could seek to debate in the joint session regarding the rejection in one house or the other, and who would have the authority to prevent that? What role would Pence play in the reassembled joint session? Can he assert veto power over a vote in each chamber? Would he entertain any Senator’s stalling maneuver?
Sixth, and finally, if the counting in the joint session shows that one candidate has received at least 270 valid electoral votes, Pence announces that result, indicating the winner.
Mischief potential: Does Pence as the presiding officer have any discretion at that point to refuse to announce that there was a winner? Could he try to delay announcing a winner, and what reason would he need to cite if he did so? If he balks, can he be overruled in the joint session? How?
Many experts on election law and constitutional law have been arguing, for weeks, that the mischief will be kept to a minimum by the leadership and that, however long the process stretches out, the votes are already dependably there for Joe Biden to emerge, in the end, as President.
The public will have the opportunity to observe this entire process, from end to end. C-SPAN.org provides gavel-to-gavel coverage when either chamber is in session, so it is expected to broadcast all of the joint session and any separate sessions devoted to objections. Other networks may also provide at least some coverage, especially if the challengers appear to be making some headway.