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On Jan. 6, the USA Congress will collect in a joint session to tally the votes of the Electoral School, which solid its ballots in state capitols final month. In his function as president of the Senate, Vice President Mike Pence is slated to formally announce Joe Biden because the nation’s subsequent president.
This formal certification course of – the ultimate step within the U.S. presidential election – is the newest goal of President Donald Trump’s determined, untenable and presumably legal effort to overturn the 2020 outcomes. In his refusal to concede, Trump is pressuring Pence and Republicans in Congress to delay or oppose certification.
Can they actually subvert the Electoral School? The reply, each legally and politically, is not any.
No rubber stamp
The congressional joint session on Jan. 6 just isn’t a mere formality. The Electoral Rely Act of 1887 requires Congress to convene and evaluate – moderately than merely rubber stamp – Electoral School outcomes.
This statute was a delayed response to the contested presidential election of 1876. That 12 months, Republicans backing candidate Rutherford B. Hayes alleged voter fraud in 4 states favoring Democrat Samuel Tilden, forcing Congress to nominate an unbiased fee to resolve 20 disputed electoral votes.
From Frank Leslie’s Illustrated Newspaper. Picture by MPI/Getty Photos
The nominally bipartisan fee, comprised of 5 senators, 5 Home representatives and 5 Supreme Court docket justices, awarded the disputed electors to Hayes, permitting him to narrowly prevail within the Electoral School by 185 to 184 electoral votes. The proceedings left a cloud over Hayes, who obtained the sobriquet “Rutherfraud B. Hayes.”
Congress was chastened, too, by the extended electoral dispute. To attenuate the chance that they might ever once more resolve the end result of a presidential election, lawmakers in 1887 handed the Electoral Rely Act.
It places the onus for resolving electoral disputes on the states. So long as they achieve this, certifying their election outcomes no later than six days earlier than the Electoral School meets to solid its votes, then states will get pleasure from “protected harbor” safety. Meaning their outcomes might be thought of “conclusive” when Congress convenes to certify the vote on Jan. 6.
Certification day challenges
In 2020, each state licensed its election outcomes earlier than the Dec. 8 “protected harbor” deadline. Joe Biden received 306 electoral votes, surpassing the 270 votes wanted to turn into president-elect, and Donald Trump received 232. Congress is legally obliged to defer to these state choices.
Even conclusive outcomes will be challenged, although.
In accordance with the Electoral Rely Act, if each a member of the Home and a member of the Senate agree that an objection has advantage, the Home and the Senate should reconvene individually and deliberate for not more than two hours earlier than voting to uphold or reject that objection. A majority in every home should vote to uphold.
To overturn an election outcome, Congress must disqualify sufficient electoral votes to deprive one candidate of the 270 votes wanted to win. The Home would then select the subsequent president based mostly on an uncommon voting system laid out in Article II of the Structure.
Challenges have occurred earlier than, albeit not often, however an election outcome has by no means been overturned.
On Jan. 6, 2005, Democratic Sen. Barbara Boxer joined just a few Home Democrats difficult George W. Bush’s win in Ohio resulting from voting irregularities. Boxer acknowledged that her objection was meant to spotlight “important disenfranchisement of voters” in Ohio. Neither she nor John Kerry, the Democratic presidential candidate, challenged the 2004 election’s end result.
Each chambers of Congress rejected the problem.
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Trump v. Pence
On Jan. 6, at the least a dozen Republicans in Congress say they’ll oppose the ends in Georgia, Pennsylvania, Arizona and Michigan over discredited considerations of election fraud in an try and swing 63 electoral votes from Biden to Trump. There isn’t a probability Democrats, who management the Home of Representatives, will vote to uphold this problem.
Except he recuses himself and palms the job over the Senate president professional tempore – as Vice President Hubert Humphrey did in January 1969 – Pence may have the ceremonial however politically consequential function of presiding over a contested certification.
After the sealed certificates of vote from the 50 U.S. states and Washington, D.C., are introduced into the joint session in ceremonial mahogany bins, the vice chairman opens the 51 envelopes one after the other and palms them to the designated “tellers.” Because the tellers announce every state’s outcomes aloud and report the votes for tabulation, the vice chairman “requires objections, if any.”
If Republicans object, a vote follows in each chambers of Congress. When the challengers can’t acquire the required help, Pence ought to declare Biden president-elect.
Pence is constitutionally certain to carry out this responsibility, however Trump says confirming Biden’s win could be a betrayal.
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An American president orchestrating an try and reverse an election – with at the least a dozen senators falling in step – does profound hurt to democracy, which hinges on the peaceable switch of energy. Republicans, and most visibly Mike Pence, face a selection between constancy to the Structure and constancy to Trump.
Donald Model is affiliated with School Republicans at School of the Holy Cross.