The rules of Congress’ Jan. 6 session governing the counting of Electoral College votes will remain identical to those used for decades, under a proposal set to be introduced Sunday by Senate Majority Leader Mitch McConnell.
The rules obtained by POLITICO must be adopted in both the House and Senate and have long been uncontroversial afterthoughts in the process of finalizing the results of presidential elections. However, as dozens of Republicans in the House and Senate threaten to challenge President-elect Joe Biden’s victory — citing baseless claims of widespread fraud and irregularities — the rules have taken on new prominence.
Some allies of President Donald Trump, who has been encouraging Republicans to subvert the 2020 election results, have sought to throw out the procedures altogether. They’ve hoped to empower Vice President Mike Pence, who will preside over the session, to unilaterally reject Biden’s electors; it’s unclear if those members will attempt to object to or change those rules when they come to the House and Senate floor Sunday evening. Rep. Louie Gohmert (R-Texas) last week sued Pence in an effort to have the procedures thrown out, but he was unceremoniously dismissed by two federal courts.
The procedures, if adopted, require Pence to introduce all papers “purporting” to be electoral votes. He is to read them alphabetically by state and offer lawmakers a chance to issue any objections along the way. These longstanding procedures permit as few as two lawmakers — a single House member and senator acting together — to grind the process to a halt, forcing the House and Senate to break up the joint session and debate the challenges for two hours apiece, before voting on them and returning to the joint session.
There is virtually no doubt that the challenges to Biden’s victory will fail. The Democratically led House will oppose them, and enough Republicans in the closely divided Senate have indicated they will reject any challenges as well. But the magnitude of the push — with dozens of House Republicans and at least a quarter of the Senate GOP — will be unprecedented, aided by the full-throated backing of the sitting president, who has encouraged supporters to convene in Washington en masse on Jan. 6 to protest the session.
Some Trump allies are encouraging Pence to try to take control of the session regardless of the rules and simply refuse to introduce Biden’s electors in states that Trump has challenged. But Pence declined to embrace that strategy in court, and Congress would similarly refuse to entertain such an effort.
The processes in the proposed rules are enshrined in a federal law passed in 1887 called the Electoral Count Act, a statute passed to address the disastrous election of 1876. The procedures have been embraced by every Congress since then to govern the Jan. 6 Electoral College certification meeting. However, constitutional scholars have debated whether the House and Senate can be bound by the 130-year-old law and whether they may supplement it to clearly define some of its vague aspects, such as Pence’s authorities as the presiding officer and the law’s requirements that all “purported” electoral votes be introduced.
One of the questions about Pence’s role is whether he intends to introduce slates of Republicans who claimed to cast electoral votes for Trump in key states that Biden won. Trump’s would-be electors met on Dec. 14, the day the formal Electoral College members met in their respective state capitals and held mock sessions to cast votes for Trump. If he does, Congress would be required, by law, to count only those certified by the state governments — but it would continue to amplify Trump’s efforts to delegitimize the process.
By Kyle Cheney