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Still Counting the Votes

January 4, 2021

Recently, we laid out the pageantry and housekeeping that Congress experiences in its first day in session. The House and Senate each go through their ceremonial and procedural exercises, each chamber doing its own thing. Three days later, however, on January 6, the two chambers unite in a Joint Session to fulfill another Constitutional duty: counting the votes of the Electoral College.That’s right: more than two full months after Election Day, with myriad recounts and court challenges, we’re still not done counting votes. The Twelfth Amendment to the Constitution, as well as Section 15 of Title 3 of the U.S. Code, lays out the process by which Congress counts the votes that were cast by the Electoral College.As a quick reminder, leading up to January 6, Americans cast votes for electors for their preferred candidate, governors certified those elections, and those electors joined in their respective states to cast their votes in what is known as the Electoral College. Those votes are certified, sealed, signed, and transmitted by registered mail to their secretary of state, the Vice President, the Archivist of the United States, and to a local federal judge. The Archivist then sends copies to Congress for it to count.The House and Senate meet at 1:00 PM on January 6 in the House chamber for a Joint Session of Congress. The Vice President opens the sealed results from each state and the District of Columbia in alphabetical order. Tellers previously selected by the House and Senate then read, record, and tally those results. The Vice President, as presiding officer, will then announce whether anyone received the requisite number of votes to serve as President and Vice President. Vice President Pence will soon join Dan Quayle and Al Gore as recent Vice Presidents who presided over the count of votes for the candidates that beat them.Now, if anything has been true during the presidency of Donald Trump, it’s that we should prepare for the unpredictable. We shouldn’t expect that, with two weeks remaining in his term, this trend won’t continue. Indeed, there have been some fairly public discussions by members of the House – with President Trump’s urging and coordination – about how to gum up the works and delay the inevitable. We know that roughly ten Republican Senators, led by Sen. Ted Cruz (R-TX) plan to push to delay and oppose certification of President-elect Biden’s victory. It is also now known that at least 140 House Republicans are set to vote against the counting.In the Senate, Majority Leader Mitch McConnell (R-KY) has urged his colleagues not to take part in these efforts as this would force Republican Senators to take a politically fraught vote that won’t be successful in achieving the President’s desired goal.One might ask, how would that work in practice? Well, there is a method by which objections can be raised. During the process above, the Vice President “shall call for objections, if any” after each state is read. If at least one House Member and Senator make a written objection stating “clearly and concisely, and without argument, the ground thereof,” the House and Senate then break off to consider these objections – effectively bringing the vote counting exercise to a halt. The Senate convenes in their chamber, and the House in its, to debate the merits of the objection and take a vote on whether or not to count the electoral votes of that state. Each chamber has a two-hour limit for consideration of these objections, some of which can be yielded back. Members are also limited to five-minute speeches. Lacking a majority of support, the objection then fails, and the votes are counted.This has happened before, most recently in 2005, when the late Congresswoman Stephanie Tubbs Jones (D-OH) and then-Senator Barbara Boxer (D-CA) lead an objection to the count in Ohio. The effort wasn’t successful, with the House voting 267-31 and the Senate voting 74-1 to dispense of the objection. However, given President Trump’s repeated jeremiads about the electoral outcomes in Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin, it’s not out of the realm of possibility that the process could drag out quite a bit if Republicans objected to the results in each of those states. However, while we may not know how Republican Senators may vote, the likelihood of the House Democratic majority voting to reject the election of their new standard-bearer and possibly grant President Trump four more years in the White House is nonexistent.What we do know is that two weeks later, at noon on January 20, Joe Biden will be sworn in as the next President of the United States.

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