There’s little doubt that Biden will be certified as president by the end of the day on Jan. 6 or in the wee hours of Jan. 7, but Trump’s allies could cast a cloud over the process — grinding it to a halt, attempting to force votes on alternate slates of Trump-supporting electors and raising untold objections to the proceedings that could disrupt the traditionally ceremonial event.
But the lack of clarity also create enormous opportunities for those who wish to limit or prevent the day-long spectacle that Trump’s allies are promising. That could include both Speaker Nancy Pelosi and Senate Majority Leader Mitch McConnell, who has been working to tamp down GOP support for challenges in recent days — drawing Trump’s fury.
“This is actually a point at which Congress could do a great deal to curb some of the more dilatory moves that some people might try to take,” said Scott Anderson, a governance studies fellow at the Brookings Institution and senior editor of Lawfare. “There’s lots of spaces to fill in, in terms of how they intend to interpret and apply the Electoral Count Act.”
In fact, while Congress has voluntarily submitted to the rules laid out in that 1887 law, there is a raging constitutional debate about whether lawmakers can deviate from it or ignore it altogether. And aides in both chambers say the rules are likely to change at least in some form for a simple reason: social distancing amid the pandemic.
Here’s a look at some of the little-known intricacies of the process that could become enormously important.
The Jan. 3 dilemma
The least-understood aspect of Congress’ electoral vote certification occurs days before the main event. On Jan. 3, the first day of the new congressional session, the House and Senate will adopt a set of rules that govern the Jan. 6 meeting.
The so-called “concurrent resolution” usually originates in the Senate, where the rules committee — chaired by Sen. Roy Blunt (R-Mo) — would issue the first version. In recent decades, even after fiercely contested elections like in 2000 and 2016, the rules have been adopted unanimously and without debate.
Those rules have been unaltered for decades, and they simply reaffirm that Congress will abide by the processes in the Constitution and in the Electoral Count Act. Those processes include a requirement that the vice president, in this case Mike Pence, will preside over the Jan. 6 session and that electoral votes are to be read aloud one state at a time, alphabetically.
Those rules also lay out the process for challenging electoral votes: it requires one House member and one senator to join together in writing to object. If that happens, the branches recess to their chambers and hold a two-hour debate, with each participant speaking up to five minutes. Then the chambers vote on whether to accept or reject the challenged electoral votes and then return to the joint session. A simple majority in the House and Senate would be expected to defeat any challenge to Biden’s votes, as they did in 2005, when Democrats forced debate on a challenge to Ohio’s electors.
But the rules aren’t etched in stone, and in fact some experts say Congress could ignore them altogether, since the House and Senate have broad authority to set their own internal rules and can’t necessarily be bound by the decisions of 19th century lawmakers. But ignoring the Electoral Count Act altogether would create a new degree of legal peril that congressional leaders are loath to unleash. Blunt’s office has declined to respond to multiple requests for comment about whether this year’s rules will match those of previous cycles.
An aide to Pelosi affirmed that she views the Electoral Count Act as the basis for the Jan. 6 procedures. A McConnell aide didn’t respond to requests for comment on his intentions for the Jan. 3 resolution.
Rather than take the extreme route of bypassing the Electoral Count Act altogether, constitutional scholars say lawmakers could use the opportunity to clarify and add onto existing processes in order to stave off uncertainty stoked by Trump’s hardline allies. That could include restricting Pence’s power to make sweeping procedural rulings or setting criteria that prevent him from introducing alternate slates of presidential electors in states won by Biden, a gambit some Trump allies have urged him to attempt.
‘What counts as a purported slate of electors from a state? Under what circumstances is a vice president allowed to present a potential slate of electors to the joint session? What types of objections are and aren’t in order?” said Michael Morley, a Florida State University election and constitutional law expert. These questions, he said, could all be clarified by Congress if they choose to supplement the Electoral Count Act rules with procedures that respond to the clear efforts of the president’s allies.
The alternate slates of Trump electors carry no legal force. But the language of the Electoral Count Act indicates that Congress must consider any documents “purporting to be certificates of the electoral votes.” Multiple constitutional experts said in interviews that Congress could help define the boundaries of what are considered legitimate electoral votes — such as those endorsed by a governor, state legislature or other state authority — and prevent the Trump votes from being read into the joint session.
Trump allies could also seek to make a stand on Jan. 3 by attempting to amend the rules in their favor or opposing any new constraints adopted in either chamber. Although those votes would likely fail, they would provide an early window into the level of support for any challenges that they intend to bring on Jan. 6 — and just how many Republicans are prepared to vote to affirm Biden’s victory as well.
The Pence problem
Pence’s role in the proceedings is the most amorphous aspect, and the one that may ensure there is an air of unpredictability no matter how carefully Pelosi and McConnell attempt to script the process.
The Twelfth Amendment requires that the vice president oversee the joint session of Congress and open each state’s certificate of electoral votes. The Electoral Count Act spells out his role further, requiring him to hand over the opened certificates to four “tellers” — two appointed by the House and two by the Senate — who then read them aloud to the chamber. Pence then asks for any objections.
But neither provision indicates what criteria Pence may use to decide whether he may introduce alternative slates of Trump electors. In fact, the rules require him to introduce any papers “purporting” to be elector slates — and it’s up to him to determine whether Trump’s electors in states won by Biden should be considered by Congress.
Pence has huddled with the Trump allies who are attempting to overturn the results, and his public rhetoric has increasingly matched the president’s. One conservative Republican, Rep. Louie Gohmert, filed a lawsuit this week to throw out the Electoral Count Act procedures altogether, which he argues violate the Twelfth Amendment’s requirement that Pence use his own judgment about which electoral votes should be counted.
The suit isn’t being taken seriously in legal circles, but it does raise one crucial question: what does Pence think? Gohmert’s attorneys revealed Tuesday that they had attempted to reach agreement with Pence before filing suit but were unable to come to terms.
If Pence agrees with Gohmert’s theory, he can attempt to assert it when he presides over the Jan. 6 session. If he doesn’t, Trump and his allies are positioning it to be the ultimate betrayal of the president. And if Pence bows out altogether, the duty of presiding would fall to Senate President Pro Tem Chuck Grassley (R-Iowa).
Pence has worked closely with Capitol Hill Republicans throughout his tenure. But it’s unclear how closely he’s coordinating his plans with McConnell or Pelosi’s offices, or if he’s seeking clarity on the specifics of his authority. His aides did not respond to requests for comment.
“What communication is there between the VP’s office, Senator McConnell’s office, Speaker Pelosi’s office?” wondered Ned Foley, a constitutional law expert at Ohio State University. “What has the VP’s office received by way of alternate electoral votes? Does he have a plan for presenting them in the joint session?”
Alternate elector slates
The language of the Electoral Count Act is extremely vague on this subject. It requires that any papers “purporting” to be official electors be considered during the Jan. 6 joint session. But there’s no clear understanding of what criteria would be deployed either by Pence or by the National Archives, which has in recent elections been a clearinghouse for states to deliver their elector documents.
Foley noted that in 1889, following the first presidential election after the passage of the Electoral Count Act, a practical jokester from Oregon submitted a fake set of electors. In that case, the vice president at the time introduced the false electors during the joint session of Congress before requesting unanimous consent to ignore it and count the legitimate ones.
In 1961, Congress was forced to adjudicate competing slates of electors from Hawaii, whose governor certified a set for Nixon before reversing course after a recount and certifying a set for Kennedy. But the outcome of that fight had no bearing on the results of the election.
On Dec. 14, when electors gathered across the country to cast their formal votes for president, Trump’s electors in several states won by Biden — including Arizona, Pennsylvania, Georgia, Michigan, Wisconsin and Nevada — held informal gatherings to attempt to cast their votes as well.
Though they were not certified by any state officials, these GOP slates have encouraged Pence to treat them as legitimate alternate slates on Jan. 6. And Gohmert’s lawsuit, joined by Arizona’s 11 GOP electors, seeks to remove any potential barriers to Pence making a unilateral decision about which electors to introduce.
“The vice president’s office or the National Archives has never made any judgments as what qualifies,” Foley added.
But federal laws also stack sharply in favor of counting only elector sets that have been certified by a Dec. 8 “safe harbor” deadline, and when disputes arise, to count only the slate certified by the state’s governor.
The coronavirus factor
There’s one aspect of the Jan. 6 process that House and Senate aides say will necessarily have to change — and it could have untold consequences. It’s simply untenable, they say, to cram 535 lawmakers into the House chamber, possibly for a day-long session, while Trump allies lodge objection after objection.
Though no final procedures have been adopted, Pelosi’s office indicated that she is considering protocols that the House has relied on since the start of the pandemic: asking some lawmakers to sit in the public galleries to maximize social distancing and requiring votes to occur in small groups, with access to the floor strictly limited.
“The procedures are outlined in the Electoral Count Act but the Speaker will continue to consult with the Attending Physician on COVID protocols,” said spokesman Drew Hammill.
It’s unclear, though, how those limits might impact the broader proceedings, and whether it could complicate the ability of Trump’s allies to upend the smooth transition of power.
Pelosi on Tuesday rolled out a strict set of social distancing procedures that will limit access to the floor of the House on Jan. 3, when members of Congress will also be sworn in for a new session. The rules restrict access to no more than 72 lawmakers at a time. It’s unclear if similar restrictions will be enforced on Jan. 6.
Gabby Orr contributed to this report.