Congress Turns Electoral-Vote Ritual Into Bitter Fight on Biden

Demonstrators gather during a protest at the Washington Monument on Jan. 6. Photographer: Victor J. Blue/Bloomberg
Demonstrators gather during a protest at the Washington Monument on Jan. 6. Photographer: Victor J. Blue/Bloomberg

(Bloomberg) -- Dozens of Republicans plan to rise up in Congress Wednesday in objection to the Electoral College vote count, an ultimately futile gesture of support for President Donald Trump that portends a rocky start for President-elect Joe Biden.

The objections are set to be rejected by Democrats and a sufficient number of GOP lawmakers to make it all but certain that Biden’s 306 electoral votes will be certified and he’ll be inaugurated on Jan. 20 as scheduled.

But the action hardens the bitter partisanship in Congress and is bound to leave millions of voters questioning the legitimacy of Biden’s victory in the November presidential election. It also will expose the biggest rift among Republicans in years, with GOP lawmakers in open and heated conflict with each other over the attempt to block Biden’s election.

The counting of the Electoral College votes of the 50 states and Washington D.C., typically a quadrennial formality for Congress, is expected to drag well into the night after kicking off at 1 p.m. The first objection is expected to come early, when the count from Arizona is announced, leading to two hours of debate and a vote in the House and Senate.

Senate Majority Leader Mitch McConnell and other prominent Republicans tried to discourage the objections, with House GOP Conference Chairwoman Liz Cheney warning it sets a “dangerous precedent” for future elections. Some usually staunch Trump allies, such as Senators Tom Cotton and Lindsey Graham and Representative Thomas Massie, are also opposing the effort.

Republican Senator Mitt Romney said Trump has “disrespected American voters, has dishonored the election system and has disgraced the office of the presidency.”

Trump has encouraged the movement, calling McConnell and others the “Surrender Caucus” and repeating baseless claims that the election was rigged.

He has also encouraged his supporters to protest in Washington while Congress is in session, and More than a thousand people gathered at a park south of the White House before dawn on Wednesday. At least three separate pro-Trump rallies are expected in Washington. Lawmakers have been given security instructions, including using underground tunnels between chambers in the Capitol and to nearby office buildings. The city of Washington has activated the National Guard, and many local businesses boarded up their doors and windows in anticipation of possible violence

The lawmakers objecting on Wednesday are poised to form the core of the anti-Biden group in the new Congress, where they will likely urge GOP leaders to refuse any deals with a president they consider illegitimate. The effects could be felt in the GOP Senate when it comes to passing new virus-relief legislation or raising the debt ceiling later in the year. In 2011, Tea Party resistance in the House to President Barack Obama pushed leadership into a debt-limit showdown that led to a downgrade of the sovereign U.S. credit rating.

The effort to overturn the November result began in December, when Representative Mo Brooks, a Republican from Alabama, said he would challenge the results of the Electoral College in five states: Arizona, Georgia, Nevada, Pennsylvania and Wisconsin. This week, he said he will object to the results from Michigan as well. All six states were won by Biden.

Other House Republicans have since joined the effort, and Brooks has said that he expects more than 50 members of his chamber to object to results from one or all those states.

Under the U.S. legal code, members of either the House or the Senate can object to the official declaration of the Electoral College results during a joint session of Congress that convenes on Jan. 6 at 1 p.m. No objection can proceed unless both a representative and a senator sign onto it and submit it in writing to the presiding officer -- Vice President Mike Pence in this case.

Josh Hawley, a Republican of Missouri, was the first senator to indicate that he would join the effort to challenge the results. Since then, several other senators, including Ted Cruz of Texas and GOP Republicans elected to the chamber for the first time in November, have indicated they would support the effort unless there is an investigation of the voting process.

The day will begin with a ceremonial feel, as mahogany boxes containing the electoral ballots are carried into the House chamber. Four lawmakers designated as “tellers” -- two from each party and from each chamber -- will take turns calling the names of the states in alphabetical order from Alabama through Wyoming.

Unless both a representative and a senator object, the process of counting the votes continues until all state results are tallied. The entire process took about 45 minutes in 2017, when then-Vice President Biden presided over the count. If an objection has support from both chambers, the joint session of Congress goes into recess and the House and Senate hold separate debates and votes. The objection is accepted or rejected by a simple majority vote.

There have been symbolic challenges in the past. In 2005 Ohio Representative Stephanie Tubbs Jones and California Senator Barbara Boxer, both Democrats, objected to Ohio’s results awarding its electoral votes to Republican George W. Bush. The challenge was rejected by votes of 267-31 by the House and 74-1 by the Senate.

This year’s proceedings are unique because the president is actively encouraging Congress to reject the votes -- a move that some members of his own party argue would be unconstitutional.

Constitutional Role

“Our role in Congress is to respect the electors sent to us by the states,” Representative Tom Reed, a New York Republican, said on Tuesday. “I will not be objecting to the states’ electors tomorrow based on my commitment to the U.S. Constitution.”

Senator Pat Toomey, a Republican from Pennsylvania, said that the effort by his colleagues “undermines” the electoral process in the country.

“I voted for President Trump and endorsed him for re-election,” Toomey said in a statement on Saturday. “But, on Wednesday, I intend to vigorously defend our form of government by opposing this effort to disenfranchise millions of voters in my state and others.”

Trump is also putting pressure on Pence to reject electors that he claims were fraudulently chosen. A lawsuit along these same lines filed by Representative Louie Gohmert in Texas was rejected by a federal court. This places Pence in the position of either defying the man he’s served under for four years or backing an effort many in his party see as dangerous.

Legal experts generally agree that the law doesn’t give Pence any authority other than to preserve order as the presiding officer and announce the winners.

“None of these duties include the power to decide controversies that might arise over counting electoral votes or to otherwise decide the outcome of the election,” Rebecca Green, an election law professor at William & Mary Law School, said on a conference call Tuesday. “That’s just not how the law works.”

Democrats in both chambers are planning to counter the Republican effort by focusing on the constitutional issues and encouraging the members from the challenged states to speak during the debate portion of the proceedings.

“Our main message is that the Constitution is clear,” House Majority Leader Steny Hoyer told reporters Tuesday. “The results of the election are clear. The conclusion of courts of the land is clear. And that I expect, without a doubt, that the report of the Electoral College and the 306 electoral votes that Mr. Biden got, will be confirmed at the end of this process.”

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