The ultimate stage within the collection of an American president comes at 1 p.m. on Wednesday, Jan. 6.

Under the circumstances of the twelfth Amendment to the Constitution, each the House and Senate meet at 1 p.m. in a joint session of Congress within the House chamber. Vice President Mike Pence, in his capability as President of the Senate, presides. But, there have been a number of cases the place the President Pro Tempore of the Senate (essentially the most senior member of the bulk get together) presides rather than the vice chairman. This can be Sen. Chuck Grassley, R-Iowa.

For occasion, President Richard Nixon defeated the Democratic nominee, Vice President Hubert Humphrey in 1968. Humphrey was nonetheless vice chairman. But he was abroad for the funeral of the primary United Nations Secretary General Tryvgie Lie. So, the duties fell to Sen. Richard Russell, D-Ga., the president professional tempore to preside over the session in Humphrey’s absence.

The twelfth Amendment says that the vice chairman shall “open the certificates and the votes shall then be counted;- The person having the greatest number of votes shall be President.”

There is a few debate as to the position of the vice chairman at this stage. Some consider it’s ceremonial. The lawsuit filed by Rep. Louie Gohmert, R-Texas — tossed out of court docket by a federal choose appointed by President Trump — pushed for the vice chairman to have extra energy over the session and the adjudication of electoral votes despatched in from the states.


All 50 states licensed their election returns final month. The Electoral College convened. Each state despatched an electoral slate to Washington.

Fox is informed it’s not unparalleled for a “rogue” slate of electors to be despatched to the vice chairman’s workplace or the Archivist of the United States as a sensible joke, or, maybe somebody making an attempt to trigger mischief. Fox has realized that when a surrogate slate of electors was despatched in, the powers that be would merely ignore it. Don’t overlook that White House adviser Stephen Miller steered sending in various slates of electors from aggressive states.

This is in reality the place Pence may flex some muscle. It relies on which electoral certificates the vice chairman elects to “open” underneath the twelfth Amendment.

This brings us to the Electoral Count Act of 1887. Congress accredited the Electoral Count Act after an epic battle from the disputed election of 1876 between President Rutherford B. Hayes (the final word winner) and his vanquished opponent Samuel Tilden. More on that later. But the Electoral Count Act — alongside the twelfth Amendment — units the bottom guidelines for the way Congress operates through the Joint Session of Congress to certify the winner of the Electoral College.


One footnote earlier than we start:

It’s frequent for the House and Senate to arrange what’s known as a “concurrent” decision which may set up sure parameters for dealing with Electoral College disputes this time round. Such a decision is usually non-controversial. But, that decision may carry further weight or have the potential to upend or truncate this yr’s Electoral College certification. But each the House and Senate should first conform to that decision.

So …

Under the Electoral Count Act, the vice chairman and Congress are speculated to solely take note of the certificates which is signed by the governor of a state. But there’s the potential for deference by the vice chairman as to which slate of electors he ought to acknowledge if there are a number of certificates from a person state.

Hawaii wasn’t a determinative state within the 1960 presidential election between President John F. Kennedy and future President Richard Nixon. Kennedy was going to win the White House, no matter Hawaii. There had been allegations of vote fraud elsewhere, notably Illinois and Texas. Initial outcomes from Hawaii confirmed that Nixon captured the Aloha State. But a recount shifted the win to Kennedy. Hawaii despatched two slates of electoral votes to Washington: one for Nixon and one for Kennedy, each signed by the governor. By the guide, Hawaii’s electoral votes ought to have gone to Nixon. But when the Joint Session of Congress convened in January, 1961 Congress handed Hawaii’s then three electoral votes to Kennedy. Nixon, then Vice President, presided. Nixon may have acknowledged the opposite slate of votes from Hawaii – for himself.

The electoral votes are introduced into the House chamber in mahogany packing containers. The vice chairman reads aloud the votes from every state, in alphabetical order. We don’t anticipate any points with Alabama and Alaska. But maintain on after we get to Arizona, third in line. The identical is probably going true for Georgia, Michigan, Nevada, Pennsylvania and Wisconsin.

Under the Electoral Count Act, a petitioner from each the House and Senate are required to problem a state’s slate of electoral votes and the provocation have to be in writing.

House members contested Electoral College ends in 2001 and 2017 and not using a Senate sponsor. In 1969, Rep. James O’Hara, D-Mich., and Sen. Edmund Muskie, D-Maine, challenged North Carolina’s slate over a “faithless elector.” This is an elector who solid his poll for George Wallace when he was pledged to Nixon. The 1969 incident marked the primary time a state’s electoral slate was challenged underneath the Electoral Count Act of 1887.

In 2005, Rep. Stephanie Tubbs Jones, D-Ohio, joined forces with Sen. Barbara Boxer, D-Calif., to problem Ohio’s electoral slate.

What occurs if no less than one House member and one senator get collectively to oppose a state’s electoral votes?

Let’s begin with Arizona.

Rep. Mo Brooks, R-Ala., and dozens of House members are anticipated to boost points with Arizona’s slate of electors. Sen. Josh Hawley, R-Mo., has already mentioned he would be a part of numerous House challenges. A coalition of different GOP senators, led by Sen. Ted Cruz, R-Texas, didn’t say they might object to a state’s electors on the ground as Hawley did. But as a substitute, these Republicans declared they “intend to vote on January 6 to reject electors from disputed states.”

These senators argue that in 1877, there have been disputed electors from Florida, Louisiana, South Carolina and Oregon. Congress then created an “Electoral Commission” to find out easy methods to parse out the electoral votes from these states. Congress would in the end vote on these outcomes. In these days, the Electoral College was smaller. The Electoral Commission awarded all contested electoral votes to Hayes, making him president, 185 electoral votes to 184 electoral votes for Tilden.

The coalition of GOP senators is asking for the creation of an analogous committee at the moment.

Such a prospect stays uncertain. But right here’s what occurs when House and Senate members be a part of collectively to problem a state’s electoral slate:

The joint session is suspended. The House then meets – simply because the House. Senators then head again throughout the Capitol Rotunda to the Senate chamber. And, for as much as two hours, the House and Senate individually contemplate and debate no matter grievances lawmakers have with Arizona’s electoral slate. Members might communicate for as much as 5 minutes through the two-hour window. The House and Senate then each take separate votes. It takes each the House and Senate to reject a state’s electoral votes. If that occurs, the electoral slate simply disappears. It’s as if Arizona by no means occurred. The House and Senate then reconvene within the joint session and proceed with Arkansas, California and Colorado. There most likely isn’t one other concern till they get to Georgia.

But, as we all the time say, it’s in regards to the math, it’s in regards to the math, it’s in regards to the math.

The House begins with 432 members. 222 Democrats, 210 Republicans and three vacancies. The Senate begins with 51 Republicans and 48 senators who caucus with the Democrats and one emptiness. Sen. Kelly Loeffler, R-Ga., continues as a senator as a result of she is fulfilling an unexpired time period. Former Sen. David Perdue, R-Ga., doesn’t. His time period ceased. Remember, the Senate calculus may change midstream – in the course of all of this – if we get election ends in the 2 Georgia Senate runoffs.

It is believed that Democrats would definitely vote to reject any electoral challenges from Republicans. And, there are definitely sufficient Republicans to hitch Democrats to do the identical within the Senate.

But bear in mind, we’re doing this within the age of COVID-19. The House and Senate are each on the margins for each events proper now. Absences imposed as a result of optimistic assessments or quarantine matter. Lots. You by no means know precisely who’s going to be there. Moreover, the House of Representatives will reinstitute its “remote voting” regime for the 117th Congress. The Senate has by no means had a distant voting choice. But the House is barred from utilizing distant voting through the certification of the Electoral College.

So, contesting every state most likely takes a couple of hours. This is why the ultimate certification of the electoral vote most likely bleeds effectively into the wee hours of Jan. 7 if not deep within the day on Jan. 7 – or past.

Consider that there’s a two-hour debate for every state. That is to say nothing of how lengthy it takes to conduct the roll name votes in a pandemic (the House averages about an hour per roll name vote today). That additionally doesn’t deal with all the ceremonial time, speeches and minutes dedicated to roll by states with uncontested electoral slates.

You see simply how this course of may chew up a few days.

The Electoral Count Act does allow recesses. But the House and Senate aren’t allowed to dissolve the joint session of Congress till the Electoral College is finalized. And, Congress should wrap this up inside a five-day window.

We are into some new turf right here as to what occurs when a number of states electoral slates are in play. In 2005, the Senate rejected the objection to Ohio’s slate 74-1. The House turned down the enchantment 267-31.

This whole train is ready in opposition to the backdrop of loyalists to President Trump claiming election fraud and Trump summoning protesters to exhibit in Washington. This course of additionally has the potential to splinter the Republican get together and set a rocky precedent for years to return. Senate Majority Leader Mitch McConnell, R-Ky., recommended Republicans in opposition to difficult electoral votes. But these calls fell on deaf ears. Sens. Mitt Romney, R-Utah, Ben Sasse, R-Neb., Susan Collins, R-Maine, Pat Toomey, R-Pa., Roger Wicker, R-Miss., and Lisa Murkowski, R-Ark., have all spoken out in opposition to the maneuver to problem the electoral votes.

Moreover, every state of contested votes triggers a roll name vote documenting how lawmakers in each the House and Senate stand on say Pennsylvania’s electors or Michigan’s electors. This is undoubtedly a useful vote for some right-wing Republicans or these near President Trump. It might assist them keep away from a major problem or ingratiates them with the GOP base. But these votes may come again to hang-out others. And, there will definitely be some Republicans who characterize states or districts the place their vote – by hook or by crook on every electoral slate – may assist or harm them. Choose the flawed course and it could possibly be harmful politically.


This is exactly why McConnell and different GOPers hoped to keep away from such an electoral imbroglio. It’s divisive for Republicans and can echo all through American politics for many years to return.

But by the tip of the day on Jan. 6, 7 or 8, there’s going to be a call. And everybody in Congress goes to be on the document as both upholding the Electoral College Results – or rejecting them.