I’m not 100% sure. The Constitution doesn’t cover it. I think they read the votes in a joint session of Congress state by state and if anyone objects to a state’s electors they head to their respective chambers to consider the objection and if both houses vote to reject the electors then… well I don’t know.
As each state’s electors’ votes are read by the chair (VP Pence in this case) any member of the joint session can lodge a challenge. Some experts read it as having to be a written challenge, others that an oral one is sufficient. Either way, if a slate is challenged then the two chambers retire to their independent chambers to debate the challenge for up to 2 hours. Then they vote. If both chambers agree, the slate is not counted (possibly… this is all law that has never been definitively adjudicated, and of course whether this SCOTUS will adhere to past precedent is a YMMV situation).
If neither candidate reaches 270 (or possibly a majority of the votes counted - another vagary that has never been ruled on) then the selection of the President goes to the House (where each state votes) and the VP to the Senate (where the body as a whole votes).
Yes but, challenge (and debate) on what grounds? “We suspect fraud, so we get to spend two hours pissing and moaning about it”?
There’s some discussion of the process in another thread. In short, Congress meets in join session to open and read the electoral votes by state. If one Representative and one Senator jointly submit an objection to those electoral votes in writing, the two chambers separately vote whether to accept them. Unless both chambers vote to reject that state’s electoral votes, they get counted.
The statute says that the objection must be in writing, it must be signed by at least one Representative and one Senator, and it must state the reason for the objection.
I’m not sure exactly what you mean. The Constitution and the relevant federal law (Electoral Count Act) do not define what the appropriate grounds to challenge a slate is.
The law has language like “regularly given”. Nobody really knows what it means because it hasn’t been an issue since the law was created (after the crazy 1876 election).
Yes, I see that is stated pretty clearly now. I must have been confusing it with some other part of the law that is more ambiguous.
I mean, is it enough for one senator and one representative to simply submit a piece of paper that says “We challenge this slate”? Or do they have to have, you know, an actual reason?
The link @Flurb submitted mentions one very specific case of a challenge of one specific faithless elector – nothing I could find in my quick skim about challenging entire slates.
The article also cites that in 2005 Representative Stephanie Tubbs Jones and Senator Barbara Boxer of California objected in writing to Ohio’s electoral votes based on voting irregularities. The chambers withdrew to consider the objection, and both rejected it.
Nobody really knows what objection would be approved because it has never happened. I believe in 2000 some House members tried to challenge Florida’s EV for Bush, but no Senator would take it up. A few were challenged for Trump by House members in 2016, but again no Senator took it up. There was one after the 2004 election, as @flurb points out.
The substance of the objection would be debated in each chamber, and one would hope that an objection written without any justification would be promptly rejected. As @flurb mentions, the law requires it to state a reason.
And here is the real nut of it:
That basically means that the only way a slate can be rejected is if both chambers agree it was not “regularly given”. But who the hell knows what that means? A strict reading would say that as long as the elector voted how the state told them to (based on the certified popular vote in that state) there is absolutely nothing Congress can do about it.
In fact, I can also read it as saying that if Trump somehow got PA, for example, to appoint electors for him in opposition to the law in PA, that would be an example of electoral votes that were not “regularly given” and they should be thrown out.
Thanks, I missed that.
(bolding mine) So as long as the Dem-controlled House gets a vote on each challenge, we can rest easy that no slate will be rejected, right? It’s just a ridiculous, time-wasting, grandstanding ploy by the GOP.
Yes, much like “high crimes and misdemeanors” for impeachment, “not regularly given” is whatever the necessary majorities of both chambers can agree it is. Absent that agreement from both chambers, the votes are counted.
Welcome to the next 4 years.
All the above discussion is forgetting to mention the “Safe Harbor Date”, which is December 8 this year. If any state certifies a slate of electors (however it does that) by that date, then AIUI Congress is obliged to accept that slate. If a state fails to certify a slate by that day, the Congress has the prerogative of deciding.
Cite: This article from the L. A. Times, dated Oct. 27 this year, explains that aspect of the process in some detail.
It appears that a lot of the Trump challenges, in both the courts and legislatures, are now aimed at keeping the certification up-in-the-air until after that, thus running out the clock on the Safe Harbor Date, thus allowing the possibility of challenging the slates in Congress.
That’s right. Again, though, I would not put it past the GOP to desperately try to delay this for so long that the electoral vote count could never be completed and to argue the EV failed and the House by delegation has to elect the President.
I laughed a little that the article links to the same CRS analysis that I linked to – it’s a really good report!
This would be all but impossible. Under the statute, debate on each objection may last no more than two hours. So even if they objected to every state’s electoral votes, they could only stretch things out for a few days. There are 14 days between the joint session and inauguration day.
Well, there’s 50 states and DC. That’s 102 hours of fun - over two workweeks.
“It is over”.
Biden’s response to a Democratic Representative’s objections to Donald J. Trump… met with cheers and a standing ovation from the GOP.
I fully expect Pence will show the same integrity as Biden did in 2017. /s