Today, at 1 pm EST, Vice-President Mike Pence will preside over the ceremonial counting of the electoral votes. It’s a process dating back to 1887 when Congress passed a law that detailed the way the ceremony should proceed. It is not a “certification” – that already happened a month ago when each state’s electors met and certified the vote count for their respective states. There are seven (and only seven) words that define what members of Congress can do today: “And then the votes shall be counted.”
What we will see
The Electoral College votes are traditionally presented in two ornate, leather-lined boxes.
Four lawmakers – two from the House and two from the Senate – are designated as “tellers.” These tellers will then read the “certificates of vote” (the official electoral vote) from each state, beginning with Alabama and ending with Wyoming.
How long does the process take?
Typically, the process takes about an hour, but today, it could take many hours.
If at least one member of the House and one member of the Senate object to a state’s results, the ceremonial counting is stopped, members return to their respective chambers and have up to two hours to debate the challenge.
Then, a vote is held to determine whether or not a state’s results will be thrown out. This could potentially happen six times, or twelve hours worth of debate, as Trump supporters have said they plan to challenge six states’ results.
Has an electoral vote ever been thrown out?
Can Pence deliver the election to Donald Trump?
VP Pence does not have the legal authority to reject state electors, or to decide whether a state’s Electoral College votes are valid. He is there to preside over counting, to be the master of ceremonies, if you will. The certification has already been done in each of the 50 states.
Some Republican lawmakers asked the courts to force Mr. Pence to expand his constitutionally-constrained role but federal judge Jeremy Kernodle, appointed by Mr. Trump, rejected that lawsuit on Friday.
A second lawsuit filed against Pence and the Electoral College (which is a process and not a body that can be sued) was soundly rejected by U.S. District Court Judge James Boasberg. He wrote that the lawsuit “rests on a fundamental and obvious misreading of the Constitution,” “the legal errors underpinning this action [are] manifold,” and that the plaintiffs’ legal theory “lies somewhere between a willful misreading of the Constitution and fantasy.” The judge was not amused by the fantasy. Simply dismissing the case “may be letting Plaintiffs off the hook too lightly,” the judge wrote. Boasberg said he was considering referring the case to the court’s Committee on Grievances, which could punish the GOP plaintiffs’ attorneys for bringing the case.
Is it possible for the outcome of the election to be overturned?
No. First, there are not enough votes in either body to vote to reject the certified results of any state and second, this election was not close. The results in multiple states would have to be rejected and that simply will not happen.
But what about glitches in voting machines?
In spite of allegations of “glitches” changing votes in Dominion Voting Systems software, no evidence was ever found or presented in court.
How about fraudulent absentee ballots from multiple states?
Again, no widespread fraud was ever found. The Georgia secretary of state, the one Mr. Trump spent an hour on the phone with, demanding that he “find” an extra 11,800 votes, conducted an audit of more than 15,000 absentee ballot envelopes – no fraud was found. Georgia has also conducted two recounts, by hand and by machine and President-elect Joe Biden still won the election.
In Pennsylvania, even Rudy Giuliani acknowledged that he had zero proof to back up allegations of voter fraud, telling the courts there that “This is not a fraud case.” Federal Judge Stephanos Bibas, also appointed by Mr. Trump, noted in his ruling rejecting one of the many court challenges “Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”
In Utah, we’ve shown time and time again that voting by mail is secure.
So why are Republicans objecting?
That’s a very good question. Former Utah Senate Minority Leader Scott Howell calls it “spreading FUD” – Fear, Uncertainty and Doubt. But to what end?
Here’s what Senator Ben Sasse (R-NE) had to say about it: “Let’s be clear what is happening here: We have a bunch of ambitious politicians who think there’s a quick way to tap into the president’s populist base without doing any real, long-term damage. But they’re wrong – and this issue is bigger than anyone’s personal ambitions. Adults don’t point a loaded gun at the heart of legitimate self-government.
We have a deep cancer in American politics right now: Both Republicans and Democrats are growing more distrustful of the basic processes and procedures that we follow. Some people will respond to these arguments by saying: “The courts are just in the tank for Democrats!” And indeed the President has been tweeting that “the courts are bad” (and the Justice Department, and more). That’s an example of the legitimacy crisis so many of us have been worried about. Democrats spent four years pretending Trump didn’t win the election, and now (shocker) a good section of Republicans are going to spend the next four years pretending Biden didn’t win the election. (Note: Hillary Clinton conceded. Trump still has not.)
All the clever arguments and rhetorical gymnastics in the world won’t change the fact that this January 6th effort is designed to disenfranchise millions of Americans simply because they voted for someone in a different party. We ought to be better than that. If we normalize this, we’re going to turn American politics into a Hatfields and McCoys endless blood feud – a house hopelessly divided.
Will Trump still like Pence when this is over?