Depending on your mileage, watching Trump’s last ditch effort to remain in power through the world’s dumbest attempt at subterfuge on the twelfth day of Christmas is either awesome or a bit sacrilege. But, whatever, apparently we’re doing this.
I’ve explained this process a few times before, but here I’m going to focus on January 6th and the Trump contingent’s, “plan,” for it. Before I get too far into this I want to remind everyone that regardless of what Stephen Miller tells the wax museum that is Fox News, Trump will not be declared President and this issue will not go to Congress. I know he off and on thinks it will, I know Trump’s Presidency has been marked by the undermining of democracy and our democratic institutions and that Trump himself is a fascist/authoritarian would-be dictator, but just as he couldn’t win the general, he also cannot win here.
And that’s actually the rub. Trump has unfortunately trained the American people to see the Presidential election not as an actual democratic election but as some sort of elitist choice. The argument could be and has been made that that is essentially what the Electoral College is and I have debated that in previous articles as well, but regardless of the persistence of the EC or even the existence of the 12th and 20th Amendments, Trump has lost this election. (He also lost the one in 2016, but again, the Electoral College is problematic.)
What needs to be understood here is that the 12th and 20th Amendments are there in case of disaster. Not, I-didn’t-get-the-result-I-was-hoping-for disaster, but disaster disaster. I make fun of Veep because their whole conceit about a Vice Presidential candidate potentially becoming and remaining President and also having the potential to serve for a full three terms is wrong on multiple levels and under multiple laws, but they did get the whole Electoral College tie thing right. That — a legitimate Electoral College tie — is the only viable scenario under which in a modern context we might have to resort to the provisions under the 12th Amendment. Technically it’s invoked if no candidate reaches a majority so if you had three competitive candidates or a bunch of abstentions it could happen, but that is not the case here.
But you know, if you want to make God laugh, tell her your plans.
The law that you’ll see cited over and over by myself and basically anyone I deign to link is the Electoral Count Act of 1887 which was “codified,” or made positivist law in 1948 referred to as 3 U.S. Code Chapter 1 (and you can refer to the notes section within the law to see various modifications in language used to keep with the times.) Apparently it’s terribly confusing and poorly written so Prof. Stephen A. Siegel wrote The Conscientious Congressman’s Guide to the Electoral Count Act of 1887. To be fair, I found this law no more confusing than any other law — it’s all Greek to me (said the woman with the classical Greek name) — but Siegel really gets into any question you may have regarding any of this. If you wish to really dig into the law here that is where I recommend you start.
In any case, 3 U.S. Code § 15 is the section relevant to January 6th and literally the first line of it says so: “Congress shall be in session on the sixth day of January succeeding every meeting of the electors.” Woot.
On that day the President of the Senate, known to us mere mortals as the Vice President, brings all the Electoral College tallies with their accompanying certificates and so forth as laid out in the previous sections of this Chapter so that Congress as a whole may open them and officially count them. Once any candidate for President receives a majority — note: not a plurality — of the count or 270 votes, they have won the Presidency. Same for Vice President.
My understanding is that except in huge banner years with really close elections and/or where the EC did not reflect the general election as in 2000 and 2016 this is mostly just a formalization put into effect to ensure there is oversight of the election and that no candidate or Party is able to manipulate the results … much in the way that Trump and the Republicans are basically trying to do now. This was put into effect after a Presidential Election went down to the absolute wire just before the inauguration in March back when that was the case and it happened largely because there were multiple slates of electors submitted.
The origin of all the pearl-clutching is that Republicans in several states have taken the extraordinary and extrajudicial step of having an uncertified and unrecognized slate of electors vote anyway. That’s … weird, but it was apparently Stephen Miller’s brainchild so, like father like son, I guess. The idea is that by challenging the EC tallies in seven states and having “alternate” electors vote then either possibly somehow the courts will eliminate the actual elector’s votes or Congress will reject votes from one or several of those states. I won’t say this can’t happen because theoretically there’s this whole thing in physics about a multiverse which I get the impression a lot of people think they understand and totally don’t, but basically, this will not happen.
The seven states in question are Pennsylvania with 20 votes, Michigan with 16, Wisconsin (10), Nevada (6), New Mexico (5), GA (16), and Arizona (11). Biden can lose 36 electoral votes before his Presidency is endangered. And while the states represented account for 84 votes, even if we descend into the conspiracy addled *checks notes* brains of the Trump base the most that can be thrown out or flipped in any world under any circumstance are the ten from Wisconsin. And that’s just because Wisconsin missed the safe harbour deadline for certification. Its votes under any normal designation still count, but if any are to be argued to be illegitimate, it will be those. Again, that won’t happen, but if we all suddenly became antimatter and it did, Biden would just win with 296 votes as opposed to 306.
The Trump team seems to think they can bully the Republican governors of Georgia and Arizona into certifying the “alternative” slate, but not only would that be asking said governors to go against both state and federal law, but it would also mean getting a recount which went your way, having a favourable court ruling, AND getting Congress to sign off on all on January 6th. Various hilarious injunctions etc. were filed, but seriously guys, “New California?” Come on.
I could get into detail on why each and every one of these attempts to undermine the electoral process is deeply fraudulent and a cynical attempt to destroy America as we know it, but fortunately, that article has already been written.
The few people who are actually interested in engaging in this nonsense — and it is less than a dirty dozen — basically want either for Vice President Pence to reject his role in this process and refuse to count the votes for the seven states in question or I guess not show up at all or they want to exploit the objection process.
To the first, that would be massively unprecedented. Several of the articles I’m linking have noted that both Al Gore and Richard Nixon did their ministerial duty in this context when they had lost their own Presidential elections. But it would also not really matter. The VP’s role here is, in fact, ministerial. If Pence refuses to do it the next in line will. To the second, while a few Republican members of the House have indicated that they will raise objections they need a member of the Senate to sign on in writing with them. A handful of Senators have indicated that they might and the really dumb one who used to be a football coach is trying to raise support for this method. But Mitch McConnell of all people is arguing against Republican objections in the Senate.
It is actually likely that objections to one or all seven of these states will be raised through the appropriate procedures. However, the appropriate procedures after that have both houses adjourning to debate whether or not to uphold the objections for 2 hours. On their return, if BOTH houses have voted to uphold the objections then the votes from that state are discarded. However, if say, the House led by the incomparable Nancy Pelosi with a majority of Democrats were to — oh, I don’t know — not uphold the objection, then the EC votes from that state WOULD be counted. So, theoretically IF on January 3rd when the new Congress is sworn in the Democrats for some reason didn’t elect Nancy Pelosi as Speaker there is an outside chance that some of the objections might possibly if you squint just right be upheld, but again we’re talking about an alternative reality in which dinosaurs still roam the land.
The article which I noted before as being the article I wish I’d written myself or something also noted that there’s some argument that the very law we’ve all been referencing over and over again is unconstitutional on the grounds that it somehow lets the wrong Congress have too much say and there’s partisan stuff and so on. So likely that argument will rear its ugly head during all of this. But again, it’s unlikely to stand because this particular law has precedent every 4 years since about 1890 and even if somehow the Republicans managed to say that the EC votes didn’t count and the Presidential election has to be kicked over to Congress the aforementioned Nancy Pelosi could just not hold that vote on the basis that the EC votes actually do count.
I genuinely expect there to be somewhere between 1 and 7 objections raised to the Electoral College tallies on January 6th. These will lead to debates in both chambers which are simultaneously 2 hours in duration and also interminable. Depending on what control McConnell still does or does not wield, there may even be an objection or two upheld by the Senate. But the House will not be upholding any of these. Even in the weird constitutional crisis scenario where the election is kicked to the House it is likely the Electoral College and General Election results will still be upheld simply because Nancy Pelosi is a pearl wearing, gavel wielding hero that Gotham does not deserve.
And in Conclusion: Nancy Pelosi is Batman.