WASHINGTON – There’s one final maneuver at least one Trump ally says he will attempt to deny Joe Biden a win: to take advantage of an 1880s law that allows members of Congress to challenge a state’s results and make the whole Congress vote on whether to accept the results. It’s been attempted after almost every election for the past two decades. It got nowhere in the past, and it almost certainly won’t now.
This year, Rep. Mo Brooks,R-Ala., told Politico he plans to go this route. President Donald Trump responded encouragingly Thursday. So far, no other members of Congress have joined the effort. It’s easy to imagine more jumping in with Trump’s encouragement. Brooks needs a senator to take this any further, though, and that’s looking like a taller order.
It has become the norm after recent elections for House lawmakers on the losing side to try to put up a symbolic fight over the results, and that has led to memorable moments.
This time, though, it’s not happening in a normal post-election period. The president has tried everything else – baseless fraud claims, undermining voting by mail, dubious legal challenges and strong-arming state legislatures – to try to reverse his loss. He’s running out of long shots to take.
Here’s how this works, and why it will almost certainly fall short.
– Congress’s role in a presidential election. It’s on the front end and back end of the election. Congress sets the election date. After that states take over, including deciding how they want to hold their individual elections and certifying their own results.
Once states certify their results and once the electoral college votes Dec. 14, states send their electoral college vote totals to Congress to be counted and confirmed. This happens Jan. 6. It’s largely a formality since election law says Congress has to treat those results as “conclusive.”
But there is a mechanism that allows lawmakers to challenge those results. It’s an extremely confusing, poorly written law from the 1880s known as the Electoral Count Act, which was written to help guide Congress if there is a dispute in a state about which candidate won.
It’s important to note that we don’t expect any disputes among the states about who won, so in some sense Brooks is misinterpreting when Congress can challenge results.
Here’s what happens next in this scenario. Experts warn that the law is so convoluted that if we get really into this process, there is lots of room for disagreement or exploitation of the law to try to overturn the results, if enough Republicans are game. (That’s a big if.)
When Congress gets together to vote to count each state’s electors and confirm results, a lawmaker from each chamber, the House of Representatives and the Senate, challenges one state’s electors. Right now there is no Senate challenger willing to do this, which would end Brooks’s effort immediately. But a GOP senator who is trying to curry support with Trump’s supporters for a 2024 run could join in. The law says lawmakers don’t have to give a detailed explanation for why they object; they basically just object.
The House and the Senate then separate and debate the challenge for up to two hours.
They vote in separate sessions on whether to accept or reject the challenge to that state’s electors.
In the House, that’s an easy vote to predict, since it’s controlled by Democrats. In the Senate, two runoffs in Georgia won’t yet be finished, so Republicans will have the majority – but narrowly, with Vice President Mike Pence presiding in a tie-breaking vote. So far, no Republican senators seem keen on voting to challenge a state’s results, and it would take a lot more than a handful of Republicans to vote to override a state’s electoral count. “I can’t imagine that that would happen,” said Sen. John Thune, R-S.D., who is a top Senate Republican. Their resistance to this idea is notable given many of Republican lawmakers still haven’t explicitly recognized Biden as the winner. Does their willingness to appease Trump stop at voting to overturn a candidate’s duly won electors?
Legally it’s even clearer that Congress has nothing to challenge, said Adav Noti with the Campaign Legal Center and an expert on this process. All the states that are in Trump’s crosshairs met every legal requirement for having their electoral votes recognized by Congress, and federal law says Congress must treat such results as “conclusive.” So a challenge is likely to end pretty quickly.
If both chambers separately vote Biden the winner, then this is over. All Trump’s allies did was delay the inevitable by a few hours.
– Where the process could get muddled. OK, but hypothetically what happens if Republicans somehow decide to push this challenge further?
If the Senate decided to vote in favor of a challenge to a state’s electors, then this is still over, Noti says. If the state in question has only offered Congress one count of electoral votes – as all states are doing – then the law still says Congress has to accept that slate. (Unless both chambers of Congress somehow vote to object to that state, which won’t happen.)
If there were multiple slates of electors to decide from, and if the chambers disagreed on which one to choose, then the tiebreaker would be the governor who certified the results. That’s good news for Biden, since the governors of several states that Republicans have been trying to challenge – Wisconsin, Michigan, Pennsylvania – are Democrats.
So even if we drift far into hypotheticals on this, there are numerous checks that would protect Biden’s win.
One question is what Pence’s role will be. He is the presiding officer in the Senate, but Noti says the law was written to limit the vice president’s authority, realizing he probably has a keen interest in the outcome.
So his role is more symbolic than anything else – he reads the vote counts of each state out loud – but perhaps he could exert his influence to challenge a state’s results, too. Noti says Congress could override him quickly.
Two vice presidents have used their power recently to the other effect, to end a challenge that would favor them or their party. In 2017, House Democrats challenged Trump’s win, and it was then-Vice President Joe Biden who was presiding over everything. “It is over,” he told Democrats. In 2001, it was then-Vice President Al Gore, who had narrowly lost the election to George W. Bush, who presided over a failed Democratic challenge to Bush’s win.
As The Post’s Mike DeBonis reports, members of the party that lost the presidential election have raised objections after nearly every election since 2000. All have failed, and only one succeeded in splitting the chambers to force them to debate the challenge. When certifying the contentious 2000 election, House Democrats tried to challenge Gore’s loss using Florida’s electoral votes, but they couldn’t find a Senate partner to get things started.
In 2005, House Democrats challenged Bush’s reelection the same way over the result in Ohio. Then-Sen. Barbara Boxer of California joined them, but the effort was squashed pretty quickly. House Democrats tried again in 2016 to challenge Trump’s win, but no senator was willing to stand with them.