Q&A of the Day – What Happens If Democrats Contest a Trump Victory?
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Today’s Entry: Brian, Jamie Raskin said if Trump wins they won’t certify the election. What can be done legally to combat this? Kamala will have to certify it as VP?
Bottom Line: On the one hand it’s premature to travel down this path as we’re still six days away from Election Day. On the other hand, Democrat Representative Jamie Raskin earlier this month did make this part of the conversation with extremely irresponsible comments to Axios. In an interview with Axios, Raskin, a prominent player in the Democrat’s two Trump impeachments while president, said this: (If Trump) won a free, fair and honest election, then we would obviously accept it. However, he said that he definitely doesn’t believe he’ll use free, fair and honest means. The direct implication being that Raskin is laying the groundwork for Democrats to not vote to certify a potential Trump victory in January. But actually, this is far from the first time this has been the case with Raskin.
There are many hypocrites in elected office, few are more hypocritical however than James Raskin. Raskin, as an elected representative, refused to certify Trump’s election win in 2016 calling it “illegitimate”. Ditto George W. Bush’s win in 2000. Many on the left and their allies in legacy news media love to parrot warnings of election denialism over the 2020 election, however numerous Democrats, including Raskin, have a long history of election denialism over multiple elections. In fact, there’s another sitting Democrat, the House Rules Committee Ranking Member Jim McGovern, a Massachusetts Democrat, who is one of them. Following Raskin’s comments to Axios, McGovern was asked about whether he would vote to certify a potential Trump win and he said: “Assuming everything goes the way we expect it to”. What does that even mean? Nevertheless, this especially important fact speaks to the dishonesty and bias that’s prevalent with most news outlets, including Raskin’s recent comments not gaining greater attention in national news reporting.
Perhaps importantly, in September, House Minority Leader Hakeem Jeffries had this to say when he was asked about a potential Trump certification vote: House Democrats are going to do everything necessary to … ensure that the winner of the presidential election is certified on Jan. 6 without drama or consequences. It doesn’t seem as though the House Democrat leader shares the perspective of a couple of his caucuses’ most radical members. Also, Republicans currently hold a House majority and if Trump is elected president next week, will almost certainly maintain the majority as well. Nevertheless, what are the potential implications to all of this should Democrats attempt to block the certification of a potential Trump election win?
There are a lot of reasons why it was appropriate for Mike Pence to not attempt to obstruct the certification process four years ago, as President Trump had called on him to do. Should Donald Trump win over Kamala Harris, who as vice president would find herself in the position Pence was in, he too will be glad precedent hadn’t been set for certification obstruction.
The key in understanding how the certification 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 contested presidential election - in which 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 Florida had contested outcomes. 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
Let’s dive into those important points. The Electoral Count Act 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 if that happens?
The vice president takes up the certification of the presidential results. She’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 objects, 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, she 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.
Since the enactment of the 1887 Electoral Count Act, no presidential election results certified in the electoral college have been rejected by congress. As always, there are two sides to stories and one side to facts. These are the facts.