Congress will convene a joint session Wednesday to count the Electoral College votes from the presidential election — with Pennsylvania in the crosshairs.
More than 100 Republican House members and a dozen senators have pledged to contest the state’s results and those from other battlegrounds, turning what’s normally a pro forma affair into what President Donald Trump and his allies cast as their last chance to reverse his loss.
Their efforts have essentially no chance of stopping Congress from signing off on President-elect Joe Biden’s victory — the last procedural step before his inauguration on Jan. 20.
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“At the end of the day, Congress is going to count 306 electoral votes for the Biden-Harris ticket,” said Derek T. Muller, an election-law professor at the University of Iowa and an expert on the process. “The only question is, how do they get there and how long does it take?”
Here’s what you need to know.
What is Congress’ role?
Federal law delegates the responsibility for counting and signing off on the Electoral College votes to Congress, but that function is largely a formality.
With Vice President Mike Pence as president of the Senate presiding, both chambers will meet at 1 p.m. to open the sealed certificates from each state containing the record of their electoral votes.
Those votes are based on election results states have already certified over the last two months, and the law requires Congress to treat those certifications as conclusive.
What’s the process for counting the votes?
Pence will open and present certificates of election for each state, one at a time in alphabetical order. One of four tellers — members appointed by both parties from the House and Senate — will read out the votes, and at the end Pence will announce the results.
Congress’ role is essentially to watch as the votes are counted, not provide oversight, Muller said. “It’s not like Congress is approving what happened in each state,” he said.
Can Congress challenge the results?
After a teller reads the results from a state, any lawmaker can object in writing. It takes one representative and one senator to sign on to the same objection in a specific state to trigger a debate and vote.
The chambers separately discuss the objection for up to two hours before voting on whether to throw out the challenged electoral votes. A majority of both the House and the Senate have to agree to disqualify a state’s results. If the chambers disagree, the electoral votes stand.
There is essentially no chance of that objection succeeding in the Democratic-controlled House.
While the Republicans hold a slim majority in the Senate, several GOP members — including Pennsylvania Sen. Pat Toomey — have declared they won’t support the effort to disqualify states’ votes. That means the objectors are exceedingly unlikely to affect the outcome. But their efforts could still turn the proceedings into a drawn-out and acrimonious debate.
Who might object?
More than half of House Republican Caucus and a quarter of the party’s senators plan to file objections, citing concerns about whether elections in some states were run legally and appropriately.
Among them are eight of Pennsylvania’s nine Republican congressmen: Dan Meuser, Scott Perry, Lloyd Smucker, Fred Keller, John Joyce, Guy Reschenthaler, Glenn Thompson, and Mike Kelly. The only Pennsylvania Republican in the House to buck his party colleagues is Bucks County’s Brian Fitzpatrick.
Jeff Van Drew, the onetime Democrat from New Jersey who switched parties in 2019, also plans to object.
But many Republican senators, including Toomey, have made clear they will oppose any move to challenge Pennsylvania’s vote. Toomey lambasted his colleagues’ efforts, calling them an “effort to disenfranchise millions of voters.”
Which states are going to be challenged?
Pennsylvania will almost certainly be one of them. Sen. Josh Hawley, the Missouri Republican who last week became the first senator to announce plans to object, specifically cited the state, claiming it failed to follow its own election laws.
Other likely targets include swing states such as Arizona, Georgia, and Wisconsin that have been the target of disinformation campaigns that falsely allege grand conspiracy theories about election rigging.
On what grounds are they objecting?
It’s not totally clear yet, but most have justified their action by citing widespread doubt among Republican voters about the legitimacy of the outcome — doubt that Trump and his allies have whipped up themselves with fabricated claims of election rigging and false allegations of mass voter fraud.
None of the Republicans who have signaled their intent to challenge votes have cited any specific evidence of fraud.
All of their concerns — ranging from claims of voting irregularities to the disputes over the rules governing the casting and counting of votes — have been litigated in court and rejected by judges, many of them Trump appointees.
In Pennsylvania, Republicans have criticized Democratic Gov. Tom Wolf’s administration and the state Supreme Court for making changes to state election rules to accommodate voters during the pandemic without the legislature’s approval. But courts have dismissed those arguments, too, failing to find any malfeasance and noting that the GOP has not produced any evidence the changes tainted the outcome with fraud.
What about the courts?
Republicans like Texas Sen. Ted Cruz have complained that no court has agreed to hear the merits of their complaints, saying that rejecting their legal challenges on procedural grounds means their substantive arguments have never been heard. He has maintained that Wednesday’s joint session is an opportunity for those arguments to be heard.
But that is misleading.
While the vast majority of the GOP lawsuits in Pennsylvania and other battleground states were rejected over gatekeeping issues such as the plaintiffs’ lack of standing to challenge the state’s votes, many of the courts took the time to address — and reject — specific claims of malfeasance raised by the GOP.
Questions around whether election law was followed are a matter for the courts, not Congress — and the courts have done their job, said Adav Noti, an election-law expert who heads trial litigation for the nonpartisan, Washington-based nonprofit Campaign Legal Center.
“It both gets the separation of powers wrong, because it’s trying to give Congress the judiciary’s role,” Noti said, “but it also gets federalism wrong, because it tries to give the federal government the states’ role.”
What about the competing Republican electors?
When the Electoral College met Dec. 14, Republicans in some states, including Pennsylvania, said they were sending a dueling set of electoral votes. It’s not clear that Pence would even treat them as legitimate challenges, but even if Pence were to present multiple slates of electors from a state, both chambers would split up to debate and then take votes.
If the House and Senate disagree on which to accept, the one that’s been signed by the governor counts. In Pennsylvania, that means the Biden votes.
What is Pence’s role?
Despite claims from Trump — who on Tuesday suggested Pence could unilaterally reject state electors — the vice president’s role in the process is entirely administrative. He has no authority to refuse to accept the results from any state.
“The people who designed the Constitution and the law around this were smart people, they realized that very frequently the sitting vice president is going to have a stake in the outcome,” Noti said.
Pence hasn’t said much publicly about how he intends to respond Wednesday to the pressure from Trump and others to take a more active role in the process. The New York Times reported Tuesday night that Pence has told the president he does not have the power to reject electors.
Haven’t lawmakers objected before?
Though they rarely receive significant attention, objections at the joint session have occurred. Several Democratic representatives attempted to challenge electoral votes for Trump after his 2016 victory, but no senators signed on to support the effort. In 2005, then-Sen. Barbara Boxer (D., Calif.) joined an objection to Ohio’s electors that was quickly shut down by her colleagues.
Unlike this time, in both cases the losing Democratic candidate had long since conceded the race. What also makes this year stand out is the sheer number of lawmakers who have announced plans to object and the significance that the president and his supporters have misleadingly placed on the proceedings by claiming it will change the outcome of the race.
“To do that in support of a sitting president who is trying to overthrow an election is a whole different level of inappropriate,” Noti said. “It’s intentionally playing to the polarization and the misinformation that the president has introduced into the process. That makes it both more serious and more dangerous.”