Q&A of the Day – Part 2: What happens when Congress contests the electoral college results
Bottom Line: In the first part of today’s Q&A I introduced the importance of the 1887 Electoral Count Act, after a chaotic contested Presidential election and how it changed the way Congressional certifications take place. As part of that explanation, I mentioned the three most meaningful changes with the Act. The first was to limit the Vice-President's role to that of only the President of the Senate – which is to officiate the certification process. More on what that means in a moment. The second was to limit Congress’s ability to challenge the results in individual states which worked in conjunction with the Act’s language strengthening each state’s authority in certifying their own results. This Act is what specifically created the “Safe Harbor” timeline in states appointing electors and certifying their own results in the electoral college. As a result of these changes, a Congressional challenge can’t change the electoral college outcome of any state. Instead, Congress can contest with the intent to reject the certification of a state’s results based on the premise that the state didn’t follow the Electoral Count Act lawfully in the process of their certification. So, what happens and what can you expect on Wednesday?
On Wednesday, Vice-President Mike Pence will take up the certification of the Presidential results. He’ll read the results of each state before a joint body of Congress. When a state’s results are read, if at least one member of the House of Representatives and one Senator object – each body of Congress is required to deliberate for two hours amongst themselves regarding the contestation of that state’s results. After two hours each body of Congress takes up a full vote on whether to certify the state’s results or to reject them. I mentioned the Vice-President's power in this process is limited to that of the President of the Senate. This is where that would have the potential to come into play. If there were a tie in the Senate, he would provide the tie-breaking vote. This is the only expressed power to effect changes in results afforded to the Vice President. Under law, both bodies of Congress must vote to reject the results of a state for them to be rejected. If even one body of Congress accepts the results, they stand and are certified. This is where the process is extraordinarily challenging for President Trump. While Republicans control the Senate as long as Mike Pence is Vice-President (regardless of Tuesday’s Senate runoffs in Georgia), Democrats control of the House of Representatives. For a successfully contested election to occur, a minimum of three contested states which were certified for Joe Biden would have to be rejected by a Democrat controlled House. Is it possible? Literally, yes. Is it realistic with Democrats in control of the House? That’s of course the rub for President Trump and his supporters. In fact, it’s not a given that the Republican controlled Senate will vote to reject any state results with senators like Mitt Romney publicly rejecting the idea.
Since the enactment of the 1887 Electoral Count Act, no Presidential election results certified in the electoral college have been rejected by Congress. The effort was most recently attempted by Democrats in January of 2005 as they unsuccessfully attempted to reject Ohio’s results in President Bush’s reelection win. As always, there are two sides to stories and one side to facts. These are the facts.
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