A Breakdown of What Happens on January 6th
To begin, this article offers no opinion whatsoever on arguments about voter fraud and other claims regarding election integrity raised by President Trump and his allies in the last month and a half. The goal here is to explain how the Electoral College votes will be counted in Congress on January 6th, why any objections made that day quite simply will not change the outcome, and why the “alternate electors” won’t come into play.
There is a great deal of discussion on social media about the counting of Electoral College votes in Congress in a couple of weeks, and a fusillade of complete nonsense about it. Some have theorized that Vice President Pence can somehow unilaterally reject the electoral votes of certain disputed states. This is false.
Others claim that the “alternative electors” from Georgia and other states can be counted instead of the electors certified by the governors of the states in question. This is also false.
In fairness, it isn’t surprising to see so much confusion on this issue. Written in 1887 in response to the train wreck of an election that took place in 1876, the federal code section laying out the procedures for counting the electoral votes, 3 U.S.C. § 15, is perhaps the most incomprehensible compilation of 809 words ever written in the history of the English language.
The process starts with the 12th Amendment, which simply says that the electors are supposed to meet in their respective states and cast their votes for president and vice president. Those votes are listed, the electors sign and certify the lists, and they are sent sealed to the capital, directed to the Vice President.
The Amendment goes on to state that, “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; –the person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.”
This is followed by a description of how a contingent election will take place, with each state’s House delegation having one vote in the matter as opposed to every member of Congress voting.
This is the first point where there seems to be confusion. 3 U.S. Code § 15 lays out how objections can be made to a state’s slate of electors (more on that later). Some seem to think that the votes on objections are executed in the same way as a contingent election, with House delegations receiving one vote each. The fact is that when an objection is made under 3 U.S.C. § 15, the whole House votes on it and the whole Senate votes on it. Only if both chambers vote to sustain the objection does the outcome potentially change.
§ 15 first states that Congress shall be in session on a certain day (this year, it falls on January 6th), that the joint session will convene at 1 p.m., and that the Vice President will preside. Aside from that, the Vice President is given no other powers or duties in this process. His role is purely administrative. Each of the certificates sent to Washington in accordance with the 12th Amendment is opened and read out to the joint session.
At this point, the Vice President shall call for objections, and here is where this statute gets really … well, stupid. Objections, “shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received.”
I struggle to imagine how an objection, which is by nature argumentative, is supposed to be made without argument. Be that as it may, this probably will happen on January 6th. House Republicans like Alabama’s Mo Brooks, Matt Gaetz of Florida, and Jody Hice of Georgia, have publicly declared that they will object to the electoral votes from the “disputed” states of Pennsylvania, Georgia, Arizona, Nevada, Michigan, and Wisconsin.
The question then becomes whether they can get a Senator to sign on. Chances are that they will, despite Majority Leader Mitch McConnell’s admonition to his caucus not to participate.
Let’s say Georgia is announced in the joint session and Jody Hice makes good on his promise to object, in writing, and he gets a Senator to join him. Senator-elect Tommy Tuberville of Alabama seems to be the most likely candidate for the job, though Rand Paul seems open to the idea. What happens then?
According to 3 U.S. Code § 15, the Senate will leave to go deliberate and debate for a maximum of two hours while the House does the same. Each chamber will then vote on whether to uphold the objection and essentially throw out that state’s electors.
This is where the plan is dead on arrival. The Democrats will have a majority in the House on January 6th with at least 222 seats. At best for the GOP, they will lead in the Senate 52-48 if they win both Georgia Senate races. All it would take to kill an objection in the Senate in that case would be three GOP Senators voting with the Democrats. In either case, if the House and Senate are split on an objection, the electoral college outcome on December 14th will remain unchanged.
This brings us to the last item: the “alternative electors” from some states. To put it bluntly, these people are not electors, and declaring themselves electors does not make them electors. They may have met in their state capital and sent documents to Vice President Pence purporting to be certifications of electoral votes for President Trump, but it quite simply does not matter. If it did, you and I could have declared ourselves to be electors and sent certificates for Mickey Mouse to Washington and possibly had them count.
These “alternative electors” were not appointed in accordance with the Elector Clause. They were not “endorsed” or “certified” by any legislature or governor. Indeed, the state legislatures of Georgia, Pennsylvania, Michigan, Wisconsin, Arizona, and Nevada were not even in session when the Electoral College votes took place on December 14, let alone voting to send competing electors, and no such votes took place prior to December 14th in these or any other states.
The most important code section here aside from 3 U.S.C § 15 is 3 U.S.C § 5, the “Safe Harbor Deadline.” Under § 5, the certification of electors “made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.” The “alternate electors” were not certified by any branch of any state government on any date, let alone six days before the Electoral College voted. The electors who voted on December 14th were, and that determination will control.
What does all of this mean?
The best case scenario for President Trump and the Republicans in the House and Senate who plan to make objections is that they can vote in favor of an objection in the Senate and could then somehow get enough House Democrats to vote for an objection and get Biden’s electors thrown out in enough states such that neither Biden nor Trump gets a majority and then a contingent election takes place.
Quite simply, that will not happen. What will happen? Assuming the GOP Congressmen who have stated they want to object do so and get a Senator to join them, the most they can really do is slow the process down with two hours of debate on each objection, with each objection most likely being voted down and the electoral vote outcome remaining what it currently shows.
If the GOP had control of both the House and Senate, things could well be different for them here. But math and facts are stubborn things, and neither are on the side of anything happening on January 6th that will ensure a second term for President Trump and Vice President Pence.