Jan. 6, 2021, is the day Vice President Mike Pence will lead the joint session of the Congress in officially certifying the electoral votes and announcing who will be president of the United States come Jan. 20. What can we expect? Well, the short answer is Joe Biden will likely be declared – officially, this time – president-elect. But there’s a caveat.
If Congress doesn’t certify all the electoral votes, Biden might not be declared president-elect. Should the former VP fall below the necessary 270, there’s a good chance Congress would re-elect Donald Trump and Pence – despite the Democrat majority in the House – thanks to the electoral mechanics of the 12th Amendment.
...the United States is not a democracy; it’s a republic.
It’s an incredible long shot – only a few times has it been attempted and never has it succeeded – but Representative Mo Brooks (R-AL) plans to pull the trigger, and he may have the support he needs from the Senate to get the ball rolling. But there’s a high hurdle Republicans still need to clear.
Understanding the 12th
Though commonly forgotten come election time, the fact remains that the United States is not a democracy; it’s a republic. The people don’t elect the president; they elect a slate of electors who elect the president. Originally, each elector submitted a single ballot with two names. Whoever got a majority of votes was named president and the runner-up was vice president. That process failed almost immediately. In 1796, we ended up with a president from one party and a vice from another – with all the partisan conflict you would expect. In 1800, two candidates from the same party tied, and the House had to decide where each state would cast its vote.
The 12th Amendment changed the process a bit. Now, electors submit two ballots, one each for president and vice president. Whoever gets a majority wins. If there isn’t a majority, then the House of Representatives would vote for the president, choosing from the three candidates who received the most electoral votes. The Senate would elect the vice president, choosing from the top two electoral choices.
But here’s where things get interesting for the 2020 election: The House breaks into state delegations, with each state getting a single vote. While the Democrats hold a majority of representatives in the House, they don’t hold a majority of states.
The High Hurdle
So could President Trump tiptoe along a 12th Amendment path to victory? Much like Biden’s reported vote total, it’s technically possible but highly improbable. Thanks to the Electoral Count Act of 1887, all it takes to begin the process of tossing a state’s electoral votes is for one senator and one representative to submit in writing their challenge. Brooks has already declared his intent to do exactly that as Pence reads the results Jan. 6, and Senator-elect Tommy Tuberville (R-AL) has indicated he would do the same.
What states might be challenged? Pennsylvania cast 20 electoral votes for Biden. Georgia and Michigan gave him 16 each. Arizona, Wisconsin, Nevada, and New Mexico provided 11, ten, six, and five, respectively. Each of those is a highly contested swing state with multiple accusations of fraud – and in each a separate slate of electors cast their ballots for Trump, just in case the fraud allegations bear fruit.
But here’s the high hurdle: Before the House splits into state delegations to vote for president – a situation that seems likely to mean another Trump term – Congress must vote to discard enough electoral votes to drop Biden below 270. Biden needs to lose 37 electoral votes to fall below the magic number, and there’s no combination that makes that happen with fewer than three of the seven contested swing states.
Once a challenge has been submitted in writing, the House and the Senate have to separate and immediately vote whether to count or discard the electoral votes in question - and each challenge must be dealt with before moving on to the next state. Before the Republicans can lead a House vote for Trump, they’ll have to convince a majority of the House to reject electoral ballots certifying Biden as president no fewer than three distinct times. Can Brooks and his allies convince enough of their colleagues to make it happen? If they can rally every Republican and a handful of Democrats, it’s possible – but it’s a tall order, indeed.
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