Republicans are split as 11 senators and representatives join the movement started by Senator Josh Hawley of Missouri to reject certification of the election.
Wednesday, January 6, 2021, is the day the House of Representatives and the Senate met to count the electoral votes. That process was not completed.
In a joint statement, the group of senators led by Senator Ted Cruz of Texas says they will vote against accepting the electoral college results unless a 10-day audit is conducted by a specially appointed electoral commission. They join Senator Josh Hawley who objects because he claims some states did not follow their election laws.
The question is what might happen to the outcome of the election if the election results are rejected?
Leading up to the objections
In their statement, the objecting senators say, “A fair and credible audit — conducted expeditiously and completed well before January 20 — would dramatically improve Americans’ faith in our electoral process and would significantly enhance the legitimacy of whoever becomes our next President.”
For weeks Donald Trump has failed to overturn the election results in some of the key states through various legal attempts. He keeps referring to irregularities and voter fraud, allegations denied by election officials and all the departments that oversee elections.
For many Republicans, Americans made their choice in the elections, and they plan to vote to affirm the 2020 presidential election. Biden surpassed the threshold of 270 votes by beating Trump 306 votes to 232. That means 40 votes need to be successfully challenged if the results are to be overturned.
Process for objections
Electoral objections have a process that allows for a debate and a vote. It appears highly unlikely that the current objections can overturn the results submitted by some states. For an objection to be successful, it must pass both chambers of Congress separately, winning a simple majority after a two-hour debate and voting period.
The process of how Congress counts the electoral votes is based on the objection process laid out by the Electoral Count Act of 1887. An objection must be endorsed by one Senator and one Representative to the electors of any one state before it is moved to a debate and vote. If there is not a majority vote in the two chambers, the votes are counted as normal.
According to the Congressional Research Service (CRS), Congress handles the objections of one state at a time. Each state where electoral votes are objected is allocated the two-hour debate and voting period. Objections to be debated and voted on are based on motions from at least one senator and one representative in the state. There won’t be separate debates and votes for each person objecting from the same state.
Currently, the House of Representatives has a Democrat majority, and the Senate has a slim Republican majority until the new Georgia senators are seated. Many Republicans have indicated they are opposed to the objections. Since the majority vote of both chambers is needed for passing the objection, it is unlikely the outcome can change.
Outcomes of previous objections
Since the Electoral Count Act of 1887 was passed following the 1876 election, where Congress was involved, only two objections have been brought to the phase where they were debated and voted. The first was in 1969 when an elector for Richard Nixon in North Carolina voted for George Wallace instead. In the second objections were posed to Ohio’s 2005 electoral votes. Neither were passed and the votes were counted.
Cruz wants an election commission modeled on the one created in 1876 made of five senators, five representatives, and five Supreme Court justices. He wants the 10-day audit of the election returns in the disputed states to be completed before the January 20 inauguration of President-elect Joe Biden.
This timeline is very unrealistic and hard to meet because the commission is not even in existence yet. Even if Congress were to agree to create one, it cannot complete the process in the few days left.
What are Pence’s powers?
Claims by President Trump that Vice President Mike Pence has the powers to reject a slate of electors if Congress doesn’t can’t stand according to the laws or Constitution. Therefore, Pence has no authority in selecting or rejecting electors.
Aside from the violence and the fact that it is very unlikely these objections will pass from either the House or Senate, the head of the department of political science at Western University, Matthew Lebo, warns of the consequences that will follow these moves.
Firstly, this attempt lays the foundations to treat Joe Biden as an illegitimate president over the four years of his term.
Secondly, this type of objection is likely to set a precedent for future elections. It could undermine democracy if parties throw out electoral votes when one has more control over both the House and Senate.
Thirdly, it appears to be a move by Senators to enhance their political ambition for future elections, especially if they plan to run for president. Some of the senators may be cashing in on Trump’s popularity.