How Congress will count up Biden's Electoral College victory

Crystal Hill
·Reporter

The 2020 presidential election will likely reach a decisive conclusion this week as the new Congress begins counting the Electoral College votes on Wednesday, a process that experts say could potentially last days.

President-elect Joe Biden’s Electoral College victory isn’t in doubt. President Trump nevertheless has spread a steady stream of misinformation about the election itself and Wednesday’s proceedings.

Here’s how the count will play out in Congress.

The Democratic-controlled House and Republican-controlled Senate will convene at 1 p.m. ET on Wednesday to receive and count the electoral votes from the states and address and resolve any objections to the votes. Biden is expected to be certified as the winner, after receiving 7 million more votes than Trump and clear victories in enough battleground states to win the Electoral College.

With few exceptions, the counting process has historically been a polite affair, election experts said Tuesday in a press briefing with reporters. But with roughly a dozen Republican lawmakers vowing to make the unusual move of objecting to states’ whole slates of electors, the count may be fraught with disagreements, fueling the false notion, spread fervently by Trump and his allies, that the election was rigged.

One thing experts are sure of is that there will be a newly certified president before Jan. 20, the final day of the current presidency. And it won’t be Trump.

U.S. Vice President Joseph Biden, reacts to an objection while presiding over the counting of the electoral votes from the 2016 presidential election, during a joint session of Congress, on January 6, 2017 in Washington, DC. It was confirmed that President-elect Donald Trump won the election with 304 electoral votes to Hillary Clinton's 227. (Mark Wilson/Getty Images)
Vice President Joe Biden presides over the counting of the electoral votes from the 2016 presidential election on Jan. 6, 2017, in Washington, D.C. (Mark Wilson/Getty Images)

“I don’t see any real potential for [objectors] to change the outcome,” Paul M. Smith, an election expert at Georgetown University Law Center and the vice president for litigation and strategy at the Campaign Legal Center, told Yahoo News. “It’s very clear that there’s a majority in both houses to support the counting of the Biden electors from the six disputed states [Pennsylvania, Michigan, Wisconsin, Georgia, Arizona and Nevada].”

Normally, the vice president acts as the presiding officer, a largely symbolic role, over the event to maintain order. The count starts after pages bring in ceremonial boxes full of votes from the states. Then, alphabetically, the states’ votes are counted.

Assuming Vice President Mike Pence presides over the count, each state’s vote count and the attached certifications from the state governors and election officials will be presented to Pence, who will then hand the votes (in an envelope) to one of the four tellers selected to receive them, according to Trevor Potter, president of the Campaign Legal Center.

The tellers are two Republicans and two Democrats from each legislative chamber — the ranking and minority members on the Senate Rules Committee and the House Administration Committee. This year the tellers should be Sens. Amy Klobuchar, D-Minn., and Roy Blunt, R-Mo., and Reps. Rodney Davis, R-Ill., and Zoe Lofgren, D-Calif.

Their job, Potter said, is to open the envelopes and read the vote totals, stating that they appear to be properly given. At that stage, any member can rise from their seat and object to the vote. The objector is then asked to detail the objection, and is also asked if it’s in writing and if it’s signed by a member of the House and a member of the Senate.

U.S. Vice President Mike Pence speaks at a rally in Kinston, North Carolina, U.S., October 25, 2020. REUTERS/Jonathan Drake/File Photo
Vice President Mike Pence at a rally in Kinston, N.C., on Oct. 25. (Jonathan Drake/File/Reuters)

If the objection doesn’t meet that standard, then it’s ruled out of order. For example, during the count in 2017, multiple Democratic House representatives objected to the vote, citing Russian interference in the 2016 presidential election, which Democratic candidate Hillary Clinton lost to Trump, CNN reported. But none of the lawmakers had the required Senate member signature.

If an objection does clear that hurdle, it is received by the presiding officer. Then the two chambers divide and separately debate the objection, for no longer than two hours, during which the objector presents arguments that support the dissent.

This procedure is what theoretically could prolong the process, if both chambers end up having to discuss multiple objections. Last week Trump loyalist Sen. Josh Hawley, R-Mo., announced that he will object during the process — on the grounds that he believes some states failed to follow their own election laws — and call for an investigation into potential fraud and election irregularities. At least a dozen other like-minded senators are expected to join him.

A spokesperson for Biden’s transition team told Yahoo News that the planned objections “won’t change the fact that President-elect Biden will be sworn in on [Jan. 20], and these baseless claims have already been examined and dismissed by Trump’s own attorney general, dozens of courts and election officials from both parties.”

Rebecca Green, co-director of William & Mary Law School’s Election Law Program, said that any attempt to somehow hand Trump a reelection by trying to “run out the clock” won’t succeed.

“I think we should expect things [to] take longer,” Green told reporters on Tuesday, noting that COVID restrictions may also affect how lawmakers can gather. “But the debate is limited by law to two hours. If the vote-counting session lasts for five days, that is, if it lasts past Monday, Congress is required to finish the counting without recessing until it is complete.”

U.S. President Donald Trump and Vice President Mike Pence attend a campaign rally at Cherry Capital Airport in Traverse City, Michigan, U.S., November 2, 2020. REUTERS/Carlos Barria
President Trump and Vice President Mike Pence at a campaign rally in Traverse City, Mich., on Nov. 2. (Carlos Barria/Reuters)

After the debate, there is a vote in each chamber. Then the Senate comes back to the House, and officers of the two chambers announce the results of the debate and the vote. If both chambers have refused to accept the objections, then the votes are counted. But if one chamber has objected and not the other, then under the Electoral Count Act — a federal law that sets the procedures for counting the electoral votes — the vote that was certified by that state’s governor is valid.

This process continues with each state until the end, when the presiding officer announces how many electoral votes were cast, received and accepted, and which candidate got how many votes, and then announces who has won the presidency and the vice presidency.

In accordance with the election results, the final count will hand Biden 306 electoral votes and Trump 232. But the potential for a controversy looms large over Wednesday’s vote, including the possibility that pro-Trump electors send in their own slate of votes, which would not be revealed until Wednesday. However, Potter said if that were to happen, it’s unlikely that those votes would even be accepted and read out by the teller, because they were not sent by a state.

Pence has said he would hear the objections, but stopped short of saying he would take any further steps, despite public pressure from the Oval Office.

WASHINGTON,The US Capitol in the late afternoon before lawmakers vote to pass a $900 billion coronavirus relief bill on December 21, 2020 in Washington, DC.  After months of impasse, negotiations came down to the wire as 12 million people are set to lose unemployment benefits the day after Christmas. (Cheriss May/Getty Images)
The U.S. Capitol in Washington, D.C. (Cheriss May/Getty Images)

On Tuesday, Trump floated the false notion that Pence can accept and reject votes on Wednesday, tweeting that the “vice president has the power to reject fraudulently chosen electors.”

“There’s really no conceivable legal basis for that,” Smith told Yahoo News. “The only thing that he’s supposed to do is announce the count; the idea that this entire election would all come down to who Pence wants to win is pretty absurd.”

If either candidate fails to reach 270 votes (which would occur if enough electors were invalidated), Green said, “then the contingent election takes place, which is a state-by-state vote in the House.” The 12th Amendment gives each state congressional delegation one vote to determine the presidency. The vice president would be chosen by the Senate.

And if for some reason there’s still no decision by noon on Jan. 20 — an even more far-fetched scenario — then the 20th Amendment requires an acting president, which would be the House speaker, Nancy Pelosi, according to Green.

Even with the added drama, Potter said he believes there are “more than enough” Republican senators and House members who have indicated they expect to recognize the duly certified votes from the states.

“So unless people change their minds,” he said, “the result is already visible.”

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