On January 6, 2021, Congress will meet in joint session to count the Electoral College votes in the 2020 presidential election, won by Joe Biden, 306-232, over Donald Trump.
This is usually a pro forma event, little noticed except by the most devoted followers of political pageantry. However, given the drama that has ensued since Election Day, awareness of each date in the process of certifying and counting the electoral votes has been heightened, and January 6 is no exception. (Before this election, how many knew what the “safe harbor” date for states’ vote certification was?)
There have been indications that the vote from some swing states will be challenged. This is not an unusual part of the process; such attempts at challenges have occurred often, most recently following the 2016 election.
After having been sworn in on January 3, the Senate and House members of the 117th Congress will meet on January 6 at 1 p.m. for the president of the Senate—in this case, Vice President Mike Pence—to open and count the votes cast by the Electoral College, as spelled out in Article II, Section I of the Constitution.
Any member of the House of the House of Representatives can submit an objection to a state’s results; this objection must be in writing in order to be considered. However, these objections matter only if a member of the Senate also signs on. Once this happens, each chamber will be required to separately debate the objections for a maximum of two hours. For an objection to any state’s votes to succeed, both chambers must agree with the objection.
Following the 2004 election, Democrats challenged President George W. Bush’s victory over John Kerry in Ohio and triggered such a debate. But the challenge overwhelmingly failed in both chambers. Republicans at the time called the effort “a travesty.”
This time, several Republicans in House have stated their intent to challenge the votes of Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin. There have been meetings in the White House with Trump and Pence to discuss the procedure. Though the GOP leadership in the Senate oppose such a move, it is possible that some Republican senators will join the effort.
If this happens, the result could be up to 12 hours of debate in each chamber, as each state challenge is taken up. It is unlikely that the House, controlled by Democrats, will agree to any challenge. In the Senate, even if controlled by the Republicans (unless the two Georgia seats go to the Democrats on January 5 and the new senators are able to be quickly sworn in), the opposition by the leadership makes it unlikely for any challenge to succeed. Still, if the debate goes on for the maximum time allowed, it is possible that the vote count will not be finished until the early morning of January 7.
Pence’s role is largely ceremonial, stating the result of the Electoral College vote and any floor vote. After all the Electoral College votes are read out—and any potential objections discussed debated—Vice President Pence, as the president of the Senate, will be tasked with declaring President-elect Biden and Vice President-elect Kamala Harris as the winners. Although that may be awkward for Pence, it is not at all unprecedented. Following the 2000 election of George W. Bush as president, Vice President Al Gore was required to declare his former opponent as the winner on January 6, 2001. In that election, Gore had won the popular vote but lost to Bush in the Electoral College, following a prolonged legal battle over votes in Florida. (It is possible, but unlikely, that Pence may decide to skip taking part in the process, leaving the role to Senate president pro tempore Chuck Grassley of Iowa. In 1969 Vice President Hubert Humphrey, who had just lost a narrow race to Richard Nixon for the presidency, “declined to preside” over the count, leaving it to president pro tempore Sen. Richard Russell (D., Ga.).)
Biden and Harris will be sworn in at noon on Inauguration Day, January 20, 2021, and the new administration will begin.
As always, if you have any questions about this report or any other questions, please reach out to Bowen Asset at info@bowenasset.com or (610) 793-1001.
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