WASHINGTON (CN) — Victory becomes less likely as the days of his term grow shorter, but President Donald Trump will ratchet up his war against the outcome of the 2020 election Wednesday as Congress convenes to count the votes that certified Joe Biden’s victory.
The main event kicks off at 1 p.m., with the House and Senate taking up a tradition of counting electoral votes cast by each state. Vice President Mike Pence presides over the ceremony — a role that is purely perfunctory despite suggestions emanating chiefly from the White House. Trump for one has claimed falsely that Pence “has the power to reject fraudulently chosen electors.”
“That is completely false and that is not how the rules work,” said Rebecca Green, professor of practice at William & Mary Law School, as part of a panel hosted Tuesday by the National Taskforce on Election Crises.
The Electoral Count Act of 1887 permits the vice president only to announce results of an overall vote count at the end of the process.
“Meaning, he will announce the winning candidates for president and vice president, but none of these duties include the power to decide controversies, including determining the outcome of the election,” Green said. “That’s just not how the law works.”
It will work this way: a clerk for each state will provide Pence envelopes, alphabetically by state, containing the recorded votes for that state’s electoral results. Congress then votes to accept or deny those findings. Objections must be written.
Successful rebukes are exceedingly rare, though it is this nimble politicking over constitutional and congressional procedure that has kept the House and Senate in motion for over a century.
On Wednesday, a small cadre of Republican lawmakers are expected to mount their challenge on the back of the same claims already blown apart in in Trump’s 60-some lawsuits.
Following first counts, recounts and audits, neither the Department of Justice, under Trump-appointed Attorney General William Barr, nor the U.S. intelligence community, already on alert due to Russia’s interference of the 2016 election, found any evidence to support allegations of rampant fraud, voter roll purges or the use of phony IDs by so-called ineligible voters.
As November recedes into the rear view, nothing has emerged to contradict that, 306 to 232, Biden resoundingly cleared the threshold of 270 votes needed to win the Electoral College.
The public smashed voter turnout records, casting ballots through mail or voting early in person. Each method was used overwhelmingly during a year that saw the Covid-19 pandemic trigger nationwide restrictions on public outings as the respiratory virus infected and killed Americans without prejudice to their political allegiance.
The results of six states are expected to come up for debate Wednesday, but Republicans’ most meaningful fight is for Pennsylvania. This is because a challenge can only be launched if one senator and one House representative unify to question the results. The only state where both a House and Senate lawmaker have already unified is Pennsylvania.
Once bicameral support for an objection is lodged, the House and Senate must return to their separate chambers to debate and vote.
A small group of Senate Republicans have signed on to Trump’s offensive to overturn the election. Over 100 members in the House have followed. Senate objections have so far gone unsupported by Majority Leader Mitch McConnell, who, despite weeks of slow walking it, finally conceded on Dec. 15 that Biden was the president-elect. The Kentucky Republican described Wednesday’s event as a “vote of conscience.”
The House, controlled by Democrats, has all the votes it needs to defeat any challenge lobbed. Even in the improbable scenario the Senate agrees to debate an objection and then successfully votes in favor of it, congressional rules require both the House and Senate vote together to approve an objection. That prospect is dead on arrival with Democrats controlling the House.
In a rarer still event where both bodies may join together on objection, the final say, constitutionally, belongs to the governor of the contested state to serve as tiebreaker. In each state contested by the Trump campaign, governors have already certified results for Biden.
Since objections run alphabetically, it is expected the ceremony will go into late into Wednesday night or the wee hours of Thursday morning. But debate is not permitted perpetually.
The Senate, for example, cannot run out the clock and block Biden from being inaugurated on Jan. 20 by launching endless filibusters. Federal law does not permit House nor Senate to discuss each objection for over two hours.
“Under the Electoral Count Act, if the vote counting sessions lasts for five days, say, past Sunday, Congress is required to finish the counting without recessing until it is complete,” professor Green explained. “There are multiple ways in which Congress can drag out this process, and it’s conceivable it will drag out farther than usual but the outcome will not change regardless of how many objections are raised.”
One example of a delay with no bearing on the outcome is if Pence, as presider, introduces slates of unofficial Republican electors for debate. Pro-Trump electors would then hold mock sessions purporting to certify Trump the same day that the Electoral College formally certified for Biden. The snag? Under law, Congress only recognizes slates certified by state governments, not political groups, activists or lawmakers looking to fundraise off a political hot potato.
Trump for months has broadcast his intention to snatch victory — albeit an imaginary one as of Wednesday — from the jaws of defeat, but in the end, he will likely spend the day sequestered at the White House spectating as his remaining loyalists in Congress eke out the administration’s dying breaths and his supporters, including the extremist right-wing Proud Boys, take to the streets of Washington to amplify the cause.
No matter what is said, however, the law itself is clear and time waits for no president.
“If for some reason the process of going through the count remains incomplete, at noon on Jan. 20, if the counting is not finished yet, the 20th Amendment requires an acting president — which is Speaker of the House Pelosi,” Green said. “Any delay does not lead to the current president staying in office. There is a clear legal process for counting to continue until it is done.”
Meredith McGehee, executive director of the nonprofit organization fighting dark money in politics, Issue One, reflected Tuesday on why Republicans would launch a mission both divisive and in effect, doomed.
“This move is pure politics, and some describe it as rank partisanship, but clearly there is a desire here to capture the Trump base,” McGehee said. “You’re seeing this split in the Republican Party among those who want to govern and those who don’t but want to position themselves politically. Given where we are in the pandemic and with unemployment numbers, the serious question here is what the role of the federal government should be and to what degree should governing be a priority for people elected to Congress?”
McGehee predicts any fruits to come of this fight for the GOP will be rotten.
McGehee has spent years on policy work in Washington with much of her time overlapping with Senate Majority Leader Mitch McConnell’s tenure.
“What does all this mean for Mitch McConnell? When he says something is a ‘vote of conscience,’ that is Mitch speak for, ‘I can’t control my caucus.’ It is going to be very challenging for this Republican conference to move forward and it will complicate what would naturally be an advantage for them in 2022. A party out of power does better in midterms but this could split them.”
Vigorous debate and voting is rooted in the foundation of a democratic republic but McGehee was skeptical of the impact this particular debate and these particular votes might have on our collective system of government.
“When you have one-fifth of the Senate and 150 representatives saying the system is rigged or untrustworthy, then it begins to erode the basis of how a democratic republic is supposed to work,” she said. “The irony is, this domestic erosion happening is by our president and in this case, there’s nothing much more to do to make our foreign adversaries happier. … This is the lit match we’re playing with at this point and that’s why it’s so dangerous. Whether you think Trump is your pick or not, it is dangerous for the system.”