Are you curious about the count of electoral votes to be conducted during a joint session of Congress on Wednesday, January 6 that will finalize the results of the presidential election? Well, you’re not alone. For the past two weeks, half the nation has been focused on that day, particularly Trump supporters. There has been very little written, however, about Sunday, January 3 when the new Congress convenes and the rules for that momentous count will be established.
The Senate rules committee – currently chaired by Sen. Roy Blunt (R-Mo) – typically issues the first draft of these rules in what is called a concurrent resolution. I’ve read that in the past they have been adopted unanimously by both chambers without debate and have not been altered for decades. Basically, these rules state that Congress shall abide by the Constitution, specifically the 12th Amendment, and the Electoral Count Act of 1887, which I’ve summarized briefly as follows:
President of the Senate shall be the presiding officer (Vice President Mike Pence or the Senate President Pro Tempore), who shall, in alphabetical order starting at 1 PM, open all certificates purporting to be the electoral votes of the States and announce the results. Any objection thereto must state clearly and concisely the grounds for the objection in writing and be signed by one Senator and one member of the House. The two chambers shall then meet separately for two hours to consider the objection(s) and take a vote. Objections will fail if a simple majority in either the Senate or the House reject them.
The Electoral Count Act is not only vague and confusing, it is an English professor’s nightmare. The 12th Amendment, which sets forth the duties of the President of the Senate (probably Pence), is not much more lucid. Legal scholars believe that this lack of clarity and specificity could provide an opportunity for Senate and House leadership to craft the aforementioned rules more precisely in order to guide the electoral vote counting process and thereby avoid lengthy challenges and a donnybrook by supporters of President Trump.
Far-right Rep. Mo Brooks (R-Ala.) has clearly stated that he intends to object to various states’ votes because of what he alleges is their flawed election systems. He will likely be joined by dozens and perhaps a hundred or more House Republicans. Sen. Josh Hawley (R-Mo.) has said he will object to votes submitted by Pennsylvania and 11 other Republican Senators say they will also object to the election results until there is a 10-day audit.
Sen. Ben Sasse (R-Neb.) seems to be the major voice of reason in the GOP. In a long Facebook post he detailed why there is no evidence of widespread voter fraud that would change the outcome of the election. He also criticized the “giant gulf” between what Trump and his allies are saying in public and what they are alleging in court. Sasse’s bottom line is that Trump doesn’t have the evidence to back up his fraud claims and neither do the “institutional arsonists members of Congress who will object to the Electoral College vote.”
When asked if any of his colleagues disagreed with him about his position Sasse said, “When we talk in private, I haven’t heard a single Congressional Republican allege that the election results were fraudulent – not one. Instead, I hear them talk about their worries about how they will ‘look’ to President Trump’s most ardent supporters.” As I have written in several blogs over the past two years, Republican politicians fear the wrath of Trump voters if they fail to support the president.
Mike Pence has his own political future to consider. No doubt, he will be a presidential candidate in 2024 if Trump doesn’t run. So, for the past four and a half years he has been sickeningly obsequious to Trump and mindful of the president’s millions of supporters. He knows that on Wednesday afternoon, all of their eyes and hopes will be on him. Pence has a no-win dilemma. Does he go rogue and attempt to aid Trump and his congressional allies in what would be a coup attempt? Or will he play by the rules and infuriate Trump’s base?
Pence had planned to fly off to Bahrain, Israel and Poland after the January 6 session but that trip was unexpectedly cancelled recently. Consequently, speculation on what Pence intends to do as he presides over the electoral vote count will be wagging everyone’s tongue in the nation’s capital early next week.
My focus, however, will be on the rules established tomorrow – yes, Sunday – and how restrictive they will be. Will they prevent Pence from presenting slates of Trump electors? Will they set forth more stringent procedures for making objections to Biden’s electors? Hopefully, we will know the answers to these questions before Wednesday.
But here’s the thing. Regardless of what Pence does, if one House member and at least one Senator object to the electoral votes from all five states where Trump is contesting the elections, that would require well over 10 hours of deliberations and related procedures.
So, will Congress end Trump’s coup attempt by finally declaring President-elect Joe Biden and Vice President-elect Kamala Harris the winners on January 6? Perhaps not – but I’m confident they will do that by early on January 7.