Q&A – Part 1: What happens when Congress contests electoral college results
Each day I’ll feature a listener question that’s been submitted by one of these methods.
Email: brianmudd@iheartmedia.com
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Today’s entry: Now that there are senators who will contest the vote certification in addition to the House the election will be contested. What I’m unclear on is what will happen? Also, I heard Democrats have tried this before, has it ever been successful?
Bottom Line: Once the six team Trump contested states - Arizona, Georgia, Michigan, Nevada Pennsylvania and Wisconsin – certified their results; attention began to shift to the last stand for President Trump’s challenge to the 2020 Presidential Election results. The Congressional certification of the electoral college results which takes place this Wednesday. Driven by the double-edge sword presented by social media – where there’s at least as much misinformation shared as factual information – confusion is high heading into Wednesday’s certification process. Most of the misinformation being shared comes from picking and choosing what one wants from Constitutional law. In reality, what will happen Wednesday, with contested results, is straight-forward and easily understood. It’s also happened in modern cycles without a change in results.
The key in understanding how the process works comes through both the 12th Amendment to the Constitution, but also the 1887 Electoral Count Act which streamlined the contestation process. The Electoral Count Act was enacted to avoid future chaos after the 1876 Presidential contested presidential election - in which you did have the leader in Electoral College votes at the time of Congressional certification, Democrat Samuel Tilden – eventually lost to Republican Rutherford B. Hayes in the most contested Presidential election in American history. This happened after four states – Louisiana, South Carolina, Oregon and yes, Florida had contested outcomes. Over the next decade Congress created the Electoral Count Act to prevent another like contestation from taking place. Without getting into the weeds of the law, it made three meaningful changes to election disputes in Congress. Those were:
- To limit the power of the Vice-President to that of only the President of the Senate
- To limit Congress’s ability to challenge state results by requiring full Congressional support to overturn any state’s election results
- To empower states to produce their own election results
Every theory advanced that I’ve come across in recent weeks, which would in theory result in President Trump winning – ignores this Act. In the second part of this story, I’ll explain what these changes mean and how it sets the stage for Wednesday’s certification process and challenges.
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