GOP lawmakers are set to challenge states’ Electoral College votes in a last-ditch attempt to overturn Trump’s election defeat

  • Some House Republicans are planning on mounting a formal challenge to President-elect Joe Biden’s Electoral College win in at least one but possibly multiple states, Axios and Politico reported Monday.
  • Vice President Mike Pence, acting as the Senate president, will preside over a joint session of the new 117th Congress on January 6 to formally certify each state’s slates of presidential electors one-by-one.
  • At least one member of the House and one member of the Senate must both move to challenge a state’s electors in writing. Rep. Jody Hice of Georgia tweeted that he will lead a challenge to Georgia’s electors.
  • At that point, both chambers of Congress would leave the joint session to go debate and vote separately on whether to accept or reject the state’s electors.
  • The effort, however, is unlikely to succeed or achieve much beyond delaying the proceedings for a few hours, since both chambers would have to vote by a simple majority to reject a state’s electors, and Trump would need multiple states to be rejected to change the electoral result.
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President Donald Trump and a number of House lawmakers are planning on one more last-ditch attempt to overturn the results of the 2020 presidential election by directly challenging state’s slates of electors in Congress, which is highly likely to fail to reverse the president’s loss. 

Politico and Axios reported that a number of conservative House Republicans met at the White House along with a number of White House lawyers and Vice President Mike Pence on Monday to discuss their plan to raise an objection to at least one but possibly multiple states’ slates of electors. 

The lawmakers present included Rep. Mo Brooks of Alabama, Rep. Andy Biggs of Arizona, Rep. Matt Gaetz of Florida, Rep. Jody Hice and Rep.-elect Marjorie Taylor Greene of Georgia, Rep. Jim Jordan of Ohio, Rep. Scott Perry of Pennsylvania, and Rep. Louie Gohmert of Texas, according to Politico.

Trump and his allies have lost upwards of 50 legal challenges seeking to subvert or overturn the 2020 election results in the weeks following the election, and spread unfounded claims of widespread voter and election fraud.

Trump’s allies also failed to successfully pressure state election officials to delay certifying election results, and also fell short in compelling Republican state legislatures in states that voted for President-elect Joe Biden to appoint separate slates of presidential electors in an effort to force Congress to vote on which one to accept. 

On Monday, December 14, slates of presidential electors met in all 50 states and the District of Columbia to formally cast their votes for president and vice president, again affirming Biden’s victory with 306 electoral votes compared to 232 for Trump, and short-circuiting many of the outstanding and potential legal challenges to election results. 

After the Monday meeting, Hice tweeted that he will “lead” an objection to Georgia’s slate of 16 presidential electors for Biden.

Trump and his allies have continued to baselessly claim that Georgia’s election was rife with fraud and irregularities, even after a risk-limiting audit involving a hand recount of all 5 million ballots cast in the presidential race and a subsequent machine recount requested by the Trump campaign affirmed Biden’s victory. 

Electoral college
Vice President Joe Biden shows the certificate of the Electoral College vote for Ohio to House Speaker John Boehner of Ohio in the House Chamber during the counting of electoral votes on Capitol Hill in Washington, Friday, Jan. 4, 2013.

Lawmakers challenging a state’s electoral votes is highly unlikely to succeed

Even though all 538 designated presidential electors have already voted in December, the full legal process of making Biden president isn’t quite finished yet. 

On January 6 of 2021, Pence, acting in his capacity as the president of the Senate, will preside over a joint session of the 117th Congress, which will be sworn in on January 3, to formally certify the results a the federal level. A teller will read aloud the certificates of votes cast by the electors representing all 50 states and Washington, DC, in alphabetical order to finalize the vote count.

If no members raise an objection to a state’s electors, that states’ slate of electors is accepted. 

The Electoral Count Act of 1887 lays out the process and guidelines for members of Congress to challenge a states’ electors, and, critically, stipulates at least one lawmaker from each chamber must raise a challenge in order for the body to take it up.

The group of Republican representatives aiming to challenge Biden electors will need a member of the US Senate to also sign on to an objection to a state’s electoral college votes in writing. At that point, both chambers of Congress, the Senate and the House, would separately split up to debate and vote on whether to accept or reject the electors. 

At least one Senate Republican, Senator-elect Tommy Tuberville of Alabama, has indicated that he may join a challenge to a state’s electors. Senate Majority Leader Mitch McConnell, however, warned his GOP colleagues on a private call not to do so, Axios and Politico reported last week. 

Lawmakers cannot challenge all the electoral votes cast throughout the entire country or for a given candidate altogether. If they wish to challenge multiple states’ electors, as Brooks has indicated he is interested in doing, they must challenge each state individually. The Senate president must count the slates of electors in alphabetical order, and cannot continue the count until after a challenge to a state’s electoral votes is fully resolved. 

The text of the ECA says that chambers of Congress can vote to reject a state slate of electoral votes that were “lawfully certified” by a state’s governor if those votes were not “regularly given,” according to the National Task Force on Election Crises, which notes that the language of the ECA does not specify what it would mean for electoral votes to not be “regularly given.” 

Both chambers would need to vote by a simple majority of over 50% to reject a given state’s presidential electors, according to the Congressional Research Service.

Democrats will maintain a majority in the US House. The Senate is likely to be narrowly controlled by Republicans, pending the outcome of two US Senate runoffs in Georgia that will take place the day before on January 5, meaning it will be highly unlikely for Republicans to muster the majority required to reject a state’s electors.

“I think the thing they got to remember is, it’s not going anywhere. I mean, in the Senate, it would go down like a shot dog,” GOP Senate Majority Whip John Thune of South Dakota told CNN.

While members of Congress have a legitimate legal avenue to bring a challenge to states’ electors in the chamber, that process has only been invoked twice since the enactment of the ECA in 1887. 

The last time that scenario played out was in January of 2005, when Democratic Rep. Stephanie Tubbs Jones of Ohio and Sen. Barbara Boxer moved to challenge Ohio’s 2004 slate of 20 electors for President George W. Bush, citing widespread election mismanagement and voter disenfranchisement throughout the state in the presidential election. 

Jones’ and Boxers’ challenge failed by a margin of 74-1 in the US Senate and 267-31 in the US House, CNN reported at the time. 

If House and Senate Republicans bring a challenge to Georgia’s electoral votes to force a vote, it will likely only delay the proceedings by a few hours and fail to actually change the outcome. If the group challenges multiple states’ electors, the process could drag on until the next day, which the ECA provides for.

Even in the improbable event that both chambers did vote to reject Georgia’s slate of 16 Biden electors, for example, Biden would still have 290 electoral votes – still far above the 270 Electoral College vote threshold to be president. 

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