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The presidential election was on Nov. 3; most news organizations pronounced Joe Biden and Kamala Harris the winners a few days later; states certified their results by Dec. 8; and the Electoral College met on Dec. 14. But there’s still a bit of election business to wrap up between now and Jan. 20, when Biden and Harris will be inaugurated as the next president and vice president of the United States.
On Jan. 6, Congress will meet in a joint session to formally count the Electoral College votes submitted by the states. The electoral votes are carried into the chamber in ornate boxes, members of Congress look them over and then the incumbent vice president, acting as Senate president, declares the winners. In this case, it will be Vice President Mike Pence declaring victory for his opponents. It will be a tough pill to swallow, but other vice presidents have in the past, including Richard Nixon in 1961 and Al Gore in 2001.
The states have already counted the votes cast by their electors. Biden won with a total of 306 electoral votes, compared with President Trump’s 232 (270 Electoral College votes are needed to win). Biden also won the popular vote by over 7 million votes.
But since Nov. 3, Trump has refused to concede defeat to Biden. The president continues to falsely claim he has really won the election, asserting widespread voter fraud. Trump’s most ardent supporters are clinging to what is almost certainly a fantasy of overturning the results of the election in Congress. The Electoral Count Act of 1887 requires the vice president to preside over the validation of Electoral College votes in a largely ceremonial capacity and to affirm the winner of the presidential election.
Rep. Louie Gohmert, R-Texas, and a group of Arizona Republicans filed a lawsuit in U.S. District Court on Sunday against Pence, arguing that the 1887 law is unconstitutional and that he should be legally authorized to pick pro-Trump electors on Jan. 6. “Vice-President Pence, in his capacity as President of Senate and Presiding Officer of the January 6, 2021 Joint Session of Congress under the Twelfth Amendment, is subject solely to the requirements of the Twelfth Amendment and may exercise the exclusive authority and sole discretion in determining which electoral votes to count for a given State,” the lawsuit contends.
Trump’s GOP allies could also take another avenue. If at least one House member and one senator object to the results, the objection is put to a vote after two hours of debate.
A handful of Republicans in the House — including Georgia Rep. Jody Hice, who was reelected — have said they will object to the electoral results in Georgia, one of the states in which Trump is alleging voter irregularities.
On the Senate side, it’s less certain. Incoming Republican Sen. Tommy Tuberville of Alabama has suggested but not confirmed that he may also lodge an objection.
The effort to throw the election to Trump would need to pass by a majority in both chambers. Even if the vote falls on party lines, it will be defeated by the Democratic majority in the House. Several Senate Republicans oppose it, including Majority Leader Mitch McConnell (who has provoked Trump’s wrath as a result). So it’s hard to imagine a situation in which an objection to a single state’s votes goes anywhere — let alone the multiple states that would be needed to change the election results.
So hold tight. Even though our calendars may change on Jan. 1 — 2020 isn’t quite over until the vice president has spoken.
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