contested election

How the January 6 Electoral-Vote Count Will Work

Pence will be under a lot of scrutiny — and pressure — in “announcing” electoral-vote winners. Photo: J. Scott Applewhite-Pool/Getty Images

The last stop for the crazy train that has been Team Trump’s effort to overturn his loss to Joe Biden in the 2020 presidential election will arrive on Wednesday, January 6, when Congress meets in a joint session to recognize the results. Trump supporters in both houses have announced that they intend to challenge enough of the 306 electors Biden won to either flip the election to the incumbent or throw it into the U.S. House.

The January 6 session is normally a pro forma exercise in which the vice-president, in his capacity as presiding officer of the Senate, is required to “open” certificates from the states naming presidential electors. The electors are then counted, leading to the affirmation of a winner entitled to be inaugurated on January 20, assuming someone captures a majority.

These provisions, which are laid out in the 12th Amendment, are supplemented by the poorly drafted and much maligned Electoral Count Act of 1887, which provides detailed guidance for contested presidential elections. It’s the Electoral Count Act, as interpreted over the decades, that was the basis for the specific rules for this year’s process adopted via a voice vote in both congressional chambers soon after the 117th Congress was sworn in over the weekend.

What’s the Purpose of the January 6 Session?

It’s often said that the constitutionally required session is intended to “certify” the results, which may be true in the colloquial sense of the word — however, that can create confusion as to whether Congress, rather than the states, actually “certifies” electors. Under the Electoral Count Act, Congress is required to count state-certified electors if they are chosen, and legal disputes are resolved by the “safe-harbor deadline” the statute sets out (six days before electoral votes are formally cast; this cycle, it fell on December 8). So as George Washington University’s Sarah Binder points out, the proper term for what Congress will do on January 6 is to “count,” not “certify,” the electoral votes for each state.

This usually happens without incident, though there was a brief and largely symbolic protest of Ohio’s electoral votes by a handful of Democrats in 2004 (not sanctioned by John Kerry), and in 1960 there was a moment of confusion over Hawaii’s electoral votes since the state’s governor had certified two different results (before and after a judicially ordered recount; Vice-President Richard Nixon defused a possible challenge to the earlier certification in his favor by recognizing the final electors pledged to his opponent, John F. Kennedy).

What Is Pence’s Role in the Process?

As noted above, the Constitution merely specifies that the vice-president will “open” certificates from the states conveying the winning Electoral College slates. The Electoral Count Act obliges the veep to “announce” the electors from each state, as certified by the appropriate state executive official (usually the governor). There is no indication in either statute that the vice-president has the power to disregard state certifications, or, for that matter, to choose between competing certifications (avoiding that problem, which deadlocked the 1876 presidential election for months, was the main reason for passage of the Electoral Count Act in the first place). So according to law and precedent, Pence is confined to the merely administrative chore of opening the certifications state elected officials have sent to Congress, arranging for their tabulation and then noting any challenges to a given state’s announced electors from members of Congress.

There is some reporting that Pence is acknowledging his very limited role, though it appears his boss, Donald Trump, does not agree with that characterization or will let him off the hook for not doing more:

Pence did object to a lawsuit filed by House troglodyte Louie Gohmert (given short shrift by the courts) seeking to strike down the Electoral Count Act as an unconstitutional restraint on the vice-president’s allegedly plenary power to choose electors. But on the other hand, he has publicly encouraged Republicans to challenge the electoral-vote count and has been present at some of the planning meetings for the coup at the White House.

If Pence does “go rogue,” he might theoretically “announce” that some or all of the “alternative electors” pledged to Trump that rump assemblages of Republicans unofficially chose in seven 2020 states carried by Biden (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin) are the “real” electors, or he might name both Biden and Trump electors as having been “certified.” Either way, it’s not likely the sergeant at arms will haul Pence off in leg-irons for violating the Constitution and federal law; Congress will probably have to overrule him.

How Does Congress Raise Electoral-Vote Challenges?

Under the Electoral Count Act, any one House member and any one senator can together challenge any state’s announced electoral votes. Team Trump has already assembled an estimated 30 House members (and the number will probably go much higher) willing to take that step on the president’s behalf, and 12 senators have formally announced they will do so as well. If that happens, the joint session of Congress will temporarily adjourn and each House will hold a debate over the challenge that will not exceed two hours (individual speakers in such debates are limited to five minutes), followed by a vote on the challenge. It requires a majority vote in both chambers to overturn a state’s announced electoral votes.

How Long Will the Debate on Electoral-Vote Challenges Last?

The answer to this question will depend on how many electoral-vote challenges the protesters choose to make. Since one of the seven states with “alternative” Trump electors wasn’t at all close (Biden won New Mexico by double digits), the most likely number of challenges is six. If Team Trump can find enough “debaters” to fill the maximum time allowed, or if those opposing the challenges choose to dignify them with a response, these “debates” could consume 12 hours, though the challengers aren’t expected to come up with any evidence beyond the unsupported assertions that have been rejected by federal and state courts in the 60 lawsuits Trump’s lawyers filed.

January 6 could be a long and tedious day, enlivened (and not in a good way) by the MAGA hordes Trump has asked to come to Washington to support his last hurrah.

What Is This Election Commission the Pro-Trump Challengers Are Demanding?

In a small wrinkle, the official position of the pro-Trump challengers in the Senate is that Biden’s election should be stopped pending the establishment of an “election commission” charged with investigating election-fraud allegations that will report its recommendations before Inaugural Day. As their statement of intent notes, that’s what Congress did in 1876 when the Hayes-Tilden presidential election went into overtime with four disputed states.

The problem with claiming the 1877 commission as precedent is that it did not in fact resolve the dispute: It voted on partisan lines to accept Hayes electors from all the dispute states. Only after a secretly negotiated deal known later as the Compromise of 1877 (in which Republicans agreed to end the last vestiges of military Reconstruction in the South in exchange for another four years of White House control) did Democrats accept the commission’s recommendation and end the crisis. But in any event, the commission preceded the Electoral Count Act of 1887, which was clearly intended to end serious electoral-vote challenges once and for all. In other words: The commission demand is a complete red herring.

How Will the Challenges End?

There is no chance either the Democratic-controlled House or the Senate controlled by Republicans who oppose the challenge categorically (20 of them have publicly announced opposition) will vote to reject any state’s Biden electors. If Pence does “go rogue” and change the dynamics by “announcing” Trump electors or leaving the choice between Biden and Trump electors to Congress, then a majority vote to overturn his determinations should not be any harder. So this whole exercise is a waste of time and attention, unless you consider a further effort to undermine confidence in our electoral system as time well spent.

How the January 6 Electoral-Vote Count Will Work